Whenever the Legislature, Executive and Judiciary harms the constitutional
values and denies the rights, which have been definite under the Constitution.
The judiciary has an important role to play to protect the rights of people. It
is the duty of the judiciary to keep different organs of the state within the
limits of power conferred to them by the constitution. It is very important that
the laws passed by the state are checked, whether they uphold the spirit of
Constitutionalism or not.
All the branches of government shall be accountable
and there shall also be a check up on them so that the rights of individuals are
protected. Judicial Review is a crucial weapon to create checks and balances
over the government's powers, in order to avoid arbitrary, unjust and
The most widely accepted meaning of Judicial Review is the Court's power to
consider the constitutionality of acts of different organs of Government
whenever the issue of the constitutionality of such acts is in question before
the courts. Smith and Zurcher explained the concept of judicial review as:
examination or review by the courts in cases actually before them, of
legislative statutes and executive or administrative acts to determine whether
or not they are prohibited by a written constitution or are in excess of powers
granted by it and if so, to declare them void and of no effect.[i]
The idea of
Judicial review basically denotes the overseeing by the judiciary, of the
exercise of power by other co-ordinate organs of government with a view to
ensuring that they remain confined to the extent of powers drawn upon them by
The judiciary by using its power holds the legislative and executive organs
within the purview of the constitution. Judicial review is a chief example of
separation of powers in a modern governmental system, while this principle is
interpreted differently in different jurisdictions, and also has different views
on the hierarchy of different governmental norms. As such the procedure and
scope of judicial review is different in nature from state to state.
The concept of Judicial review can be understood by analysing the different
legal systems of different countries, like for instance in the United Kingdom
which is a common law country, there is Parliamentary Supremacy, thus Judicial
Review of Legislative Acts is not permitted. While in the United States of
America Constitutional Supremacy prevails and the same goes with India, where
the Doctrine of Separation of Powers has been held as the Basic Structure of
Constitution and Constitutional Supremacy established, which permits the review
of the legislative acts.
Evolution and origin of Judicial Review:
The seeds of this doctrine were sowed by the natural law theory propounded in
Dr. Bonham's case in England while declaring an Act of the Parliament, which had
put its seal on the Charter of the Royal College of Physics, as void. He
asserted that When an Act of Parliament is against common law right and reason,
or repugnant, or impossible to be performed, the common law will control it and
adjudge such Act to be void[iii], but the theoretical foundation of the process
of judicial review, that:
In case of a conflict between the Constitution and a
legislative statute, the Court will follow the former, which is superior of the
two laws, and declare the latter to be unconstitutional, was laid down by the
judgment of Chief Justice Marshall of the United States Supreme Court in 1803,
in Marbury v. Madison
Judicial Review in the USA:
There is no mention of the Judicial Review in any part of the US Constitution.
The origin of judicial review in the USA is the result of a judicial decision
and its protraction has been possible due to some conventions. In a series of
important decisions, the Supreme Court under the leadership of Chief Justice
John Marshall not only established the principle of judicial review of federal
legislative action but also gave meaning to important structural Constitutional
provisions, such as the Commerce Clause, that defined the respective spheres of
competence of the states and the new federal government[v].
That it was not
until the Marbury v. Madison case
, the act of the congress extending to the
court authority, which had not been granted by the constitution was declared
invalid by the U.S. Supreme Court.
Judicial Review under Constitution of USA:
The United States is a federal state, with a national government and governments
in each of the fifty constituent states. At the national level power is divided
among three coequal branches: the executive branch headed by a president, who is
head of state and government; the bicameral legislative branch with houses of
basically coequal power; and the independent judiciary, which exercises judicial
Article III of the U.S. Constitution provides:
The judicial power of the United
States which includes original, appellate jurisdiction and also matters arising
under law and equity jurisdiction incorporates judicial power of Court.
VI of the Constitution USA provides:
All powers of government are exercisable
only by the authority of the organ established by the Constitution. Thus Article
VI incorporates The Constitution of the USA is the supreme law of the land.
While Judicial review is not expressly provided in the Constitution of the USA,
it was formulated by the decisions of the Court. The Supreme Court of the U.S.A
has the power to examine the acts of Congress and State Legislatures from
devolving the essential legislative functions to the executive.
The concept of
due process of law
had created a democratic balance in the USA, by declaring
the laws enacted arbitrarily as illegal laws. The 'due process' clause in the
American jurisprudence has served the American judiciary in its fight against
the powerful executive and this is the clause which bestowed the power of
judicial review to the American judges.
The idea of judicial review was confirmed in Marbury v. Madison
, that the courts
have the last word in determining the constitutionality of legislation and the
Court is the branch of government, which determines whether legislation is in
conformity with the Constitution, become fundamental to the American theory and
practice of constitutionalism.
Judicial Review in India
After India's independence from Britain in 1947. The Indian Constitution was
drafted and came into existence on January 26, 1950. It is the longest written
constitution in the world, while the Constitution of the United States of
America is regarded as one of the oldest democratic written constitutions in the
world and has also influenced the constitutions of other countries particularly
those of Asian countries. India is no exception to this.
Though India has
Westminster type of Government, yet since England has no written constitution,
the members of Indian Constituent Assembly Shri B.N. Rau, who was the
Constitutional Adviser to the Assembly and Sir Alladi Krishnaswamy Ayyar, in an
effort to evolve a comprehensive written constitution for India, relied heavily
on the Constitution of the U.S.A.
The case of Emperor vs. Burah 1877
was the first case which interpreted and
originated the concept of judicial review in India, although Government of India
Act, 1858 and Indian Council Act, 1861 had imposed several restrictions on the
powers of Governor General in Council in evading laws, but there was no
provision of judicial review, hence Emperor Vs Burah
was first case where
concept of judicial review was recognized in India, wherein court held that
aggrieved party has a right to challenge the constitutionality of any
legislative Act, which is enacted by the Governor General council exercising his
power given to him by the Imperial Parliament and this was the case where the
High court and Privy Council had upheld the view that Indian courts had power of
judicial review with some limitations [vi].
Then in Annie Besant v. Government of Madras
[vii] The Privy Council decided that
there was a fundamental difference between the legislative powers of the
Parliament and the authority of the subordinate Indian Legislature, and any
enactment of the Indian Legislature which was in excess of the delegated powers
or in violation of the limitation imposed by the imperial Parliament will be
null and void.
Constitutional provisions of Judicial Review in India:
There was no specific provision of the Judicial Review in Government of India
Act, 1935 and the constitutional problems arising before the court necessitated
the adoption of Judicial Review in a wider perspective. Now, Constitution of
India, 1950 explicitly establishes the Doctrine of Judicial Review under various
Article 13 and Power of Judicial Review
As per Article 13 of Indian Constitution all rules, regulations, ordinances,
bye-laws, notifications, customs and usages are considered as Laws and if any of
such laws are inconsistent or are contrary to any of the provisions of
constitution, they can be declared ultra vires by the Supreme Court and by the
High Courts. The justifiability of fundamental rights and the source of Judicial
Review can be found under Article 13 which is regarded as a key provision as it
gives teeth to the fundamental rights that cannot be infringed by the state
either by enacting a law to that effect or through administrative action.
Judicial Review of Administrative Actions:
In India, Judicial Review is embodied in the Constitution and the subject can
approach the High Court and Supreme Court for the enforcement of fundamental
rights guaranteed under the Constitution. If the executive wing or the
Government abuses its power or if the action of the government is mala fide,
such action can be quashed by the ordinary courts of law. As a general rule,
courts have no power to interfere with actions taken by administrative
authorities in the exercise of discretionary powers. But this does not mean that
there is no power of the court to control the discretion of the administration.
In India, the court interferes with the discretionary powers exercised by the
administration basically on two grounds which are failure to exercise
discretion and excess or abuse of discretion.
Judicial Review of Constitutional Amendments:
The Supreme Court of India is the guardian of the Indian Constitution and time
to time had to scrutinize the validity of constitutional amendment laws, The
parliament has amending powers by which it can amend the provisions of the
constitution but it cannot abrogate the basic structure of the constitution. and
the question of whether fundamental rights can be amended under Art. 368, had
been considered Supreme Court in Shankari Prasad v. Union of India
Court held that the power to amend the constitution including the fundamental
rights is contained in Article 368, and that the word 'law' in Article 13(2)
includes only an ordinary law made in exercise of the legislative powers and
does not include a constitutional amendment which is made in exercise of
While in Sajjan Singh v. Rajasthan
[ix] once again the
court revised its earlier view that constitutional amendments, made under
Article368 are outside the purview of Judicial Review of the Courts. That it was
in Golak Nath vs. State of Punjab
[x] Supreme Court overruled the decision of Shankari Prasad and Sajjan singh's case
and observed that An amendment is a law
within the meaning of Article 13(2) which included every kind of law be it
statutory or constitutional law, hence a constitutional amendment which
contravenes Article 13(2) will be declared void.
Finally in the famous case of Keshavananda Bharti vs. State of Kerela
[xi], when the question as to what extent
the state had amending power conferred by Article 368 of the Constitution.
Wherein the court observed that Under Article 368 Parliament can amend the
fundamental rights but cannot take or abridges the Basic Structure of the
Current situation of Judicial Review in India
In the present scenario, the Supreme Court plays a very crucial role in
interpreting the constitutional provisions and in present times the concept of
Judicial Review became a fundamental feature of the Constitutional
Jurisprudence. In Joseph Shine vs Union of India
[xii] held that sec 497 of
Indian Penal Code is unconstitutional.
Similarly Supreme Court of India in Navjot Singh Joher vs Union of India
[xiii] where the constitutional validity of
sec 377 was challenged on the ground that it violates fundamental rights.
Justice Chandrachud observed that :
I am not bound by societal morality, I am
bound by constitutional morality and if the constitution protects the interests
of a single citizen of India I am bound to protect it.
As such Section 377 of
Indian Penal Code was decriminalized and was held to be unconstitutional.
Anuradha Bhasin vs Union of India
[xiv] The Union Territory of Jammu and Kashmir
was directed by the Supreme Court to review all orders suspending the internet
services forthwith, all orders not in accordance with law must be revoked. The
Supreme Court observed that the Freedom of Speech and Expression, the Freedom to
practice any Profession or carry on any Trade, Business or Occupation over the
medium of internet, enjoys constitutional protection under Art 19 (1) (a) and
Art 19 (1) (g). Any restriction upon such fundamental rights needs to be in
consonance with the mandate under Art 19 (2) and Art 19 (6) of the constitution.
Judicial Review Comparison: India and USA
In the USA the Supreme Court has the power to declare any law unconstitutional
on the ground of its not following due process of law. The Parliament and State
legislature enjoys supremacy in their respective legislative fields and where
Courts have no authority to question the wisdom or policy of the law duly made
by the appropriate legislature and can reject a law only on the basis of it
The Supreme Court in India has several times refused to
declare legislative actions of parliament as invalid on the ground that unless
it can be shown that the natural, social or political rights of citizens are
violated and such injustice was expressly prohibited by the Constitution it
refused to interfere with legislative functioning.
In India, there are specific and extensive provisions of judicial review in the
Constitution of India such as Article 13, 32, 131-136, 143, 226, 227, 246, 372.
While the term judicial review is not expressly mentioned in any of these
Articles but they are implicit in these Articles. Whereas the Constitution of
the United States of America doesn't have any specific provision for judicial
review, Article III, IV, V incorporates judicial power of the Court, and
constitutional supremacy and all the laws are subject to the Constitution,
therefore, it is implicit in nature. Judicial review in United States of America
is the formulation by court
The doctrine of Separation of Powers which is a dominant feature of the American
Constitution, had helped the Supreme Court a great deal in this connection. In
India the existence of a parliamentary government, which ensures the
responsibility of the executive to the legislature and minimizes the
possibilities of any conflict between the agencies of the government. However,
the position of the judiciary in India is more or less the same and is similar,
to a great extent, to that in the United States regarding constitutional
To conclude, it is because judicial review the court's power has strengthened in
the present scenario. The doctrine of Judicial Review of the United States of
America was the pioneer of Judicial Review in other Constitutions of the world,
which further evolved after the 18th century, while the Indian constitution was
also greatly inspired. In India the concept of judicial review was founded on
the principle of rule of law, the scope of judicial review is wider in India as
compared to the United States of America.
Because the Constitution of the United
States of America is very concise in nature and it is the most rigid
Constitution in the world. Whereas the Indian Constitution although being rigid,
it is flexible as well in nature, and also has detailed provisions making it the
wealthiest Constitution in the world.
- Edward Conard Smith & Arnold John Zurcher , Dictionary of American
Politics, Barnes &
Nobel, New York, 1959, p. 212.
- S.P.Sathe, Judicial Activism in India, 2nd. Edition-,Oxford India Paper
- (1610) 8 Co. Rep.114
- 5 U.S. (1 Cranch) 137 (1803)
- Arthur T. von Mehran ,Peter L. Murray, Law in the United States, Cambridge
University Press, 2 nd Edition, p.134.
- Emperor v. Burah, ILR, Calcutta, 63 (1877). 2
- (1916) ILR 39 MAD 1164 Mrs. Annie Besant v. The Government of Madras
- AIR 1951 SC 548
- AIR 1965 SC 845
- AIR 1967 SC 1643
- AIR 1973 SC 1461
- 2018 SCC OnLine SC 1676
- AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016
- 2020 SCC ONline SC 25