Author: Aditi Bansal,
Law College Dehradun, Uttarakhand
The Judiciary is the shield that our forefathers gave us to protect our Constitution, its values, its features and elements. One such element of the Constitution is the concept of ‘judicial review’ which originally came from the landmark case of Marbury, in United States of America where it was recognised for the first time. Judicial review plays an important role in our democracy, as it is a protector of the rights and features of the Constitution, when the Executive, Legislature or Judiciary might act in a way that a threat to these might be caused. This concept is marked as one of the most necessary and basic requirements to safeguard the duties and rights of individuals.
The concept of judicial review originated from the United States of America, which originally had no such provision in its Constitution. Judicial review was first highlighted in the case of Marbury v. Madison, by Chief Justice Marshall in 1803. India also borrowed the concept of judicial review from U.S.A. The landmark cases in India regarding judicial review are that of I.C. Golak Nath and Ors. v. State of Punjab and Anr. and Kesavananda Bharati v. State of Keralawith dealt with some huge fundamental issues leading to the rise of multiple constitutional controversies. In India, the Courts have exercised this power of judicial review before the enactment of Constitution of India. The Federal System’s introduction in India by British was done by enacting the Government of India Act, 1935. This Act gave both the State and Central legislatures absolute powers in their respective spheres, hence giving them supremacy as well in those spheres.
The same Act also established the Federal Court, to act as an intermediary between the central and the state. This Court was also authorized to scrutinize the violations of constitutional directions as far as the distribution of powers between the centre and the state as federalism came to the country. The power of judicial review had not been specifically given in the Constitution, but the Federal Court was impliedly entrusted with this authority, along with the function of interpreting and determining the constitutionality of legislative acts. The successor of the Federal Court is the Supreme Court of India, since the Constitution of India came into force. This provision for judicial review was duly incorporated within the Constitution, due to which the legitimacy of Judicial Review never arose as an issue. It envisages healthy judicial review mechanism, which relies on the judiciary’s way to act accordingly, so that the spirit of democracy can be maintained.
Meaning and Interpretation:
In simple words, it can be said that judicial review is a process under which the actions of the Executive and Legislature are reviewed by the Judiciary. The Judiciary reviewing previous verdicts which might seem objectionable to the parties or might have some actual rational or valid grounds to be reviewed also fall within the ambit of judicial review. In simple words, it can be understood as a form of court proceeding, where the decision is reviewed by the Judiciary, where the question of lawfulness of a verdict arises. If the judgement is not lawful, then the specific remedy to be provided might be reconsidered. The main motive behind judicial review is to analyse whether the laws, prescribed procedures and norms are properly being applied and followed or not.
The Indian Constitution has given these powers mainly to the Supreme Court and the High Courts. However, the main power to determine the constitutional validity lies with the Supreme Court and forms an integral part of the Constitution, as said by justice Khanna in his judgement of a fundamental rights case. Under judicial review the regular rights of the individual must be looked after and it should be ensured that any Legislative or Executive act does not breach, evade or discriminate regarding the area of ensuring fundamental rights to a person. With the help of this concept judiciary can declare any law made by Legislature and Executive void, in case it conflicts with any of the existing laws in the Constitution of India. The influence of Judicial review can be found in several different articles of the Indian Constitution, as given to the Supreme Court in Articles 32 and 136, and to the High Courts in Articles 226 and 227. Along with this, this authority has also been given in Article 13 of Indian Constitution. The compulsion of Judicial review was described in part III of the Constitution.
Some of the landmark cases which have played a very significant role in the development of the concept of judicial review over the years are that of, L. Chandra Kumar v. Union of India, State of Madras v. V.G. Row, A.K. Gopalan v. State of Madras, Binoy Viswam v. Union of India, Shayara Bano v. Union of India and some others as well.
Judicial review cannot be done in policy matters. It is justified only if the policy in consideration is arbitrary or unfair in nature, or if it might cause any kind of threat to the Constitution’s structure, or if is a violative of fundamental rights given to the people. If any state or central policy proves to be oppressive, mindless, or imprudent, the Judiciary shall intervene with the concept or judicial review, otherwise, reviewing policies does not come within the ambit of judicial review. The important cases here are of Kerala Bar Hotels Association v. State of Kerala and of Census Commissioner v. R. Krishnamurthy.
There is no judicial review in statutory Tribunals as well. The case of Tamil Nadu Pollution Control Board v. Sterilo Industries (I) Ltd. can be referred to here. An order passed by the State Government under Section 18 of the Water (Prevention and Control of Pollution) Act is not a subject-matter of judicial review by the National Green Tribunal Act, 2010. The power of judicial review cannot be exercised by the Tribunal, similar to that of a High Court exercising the Constitutional power under Art. 226 of the Indian Constitution.
Judicial review is an ever-growing concept. In a nutshell, doctrine of judicial review gives us an idea that the Constitution is the supreme law of the land and any law inconsistent therewith is void. Doctrine of Judicial Review is one of the major doctrines for preventing the despotic and authoritative nature of the Government. As of the present times, this concept is still quite restricted in India as compared to its prevailing states in U.S.A, as its basis of reviewing legislative acts is a lot more secure under the Constitution of India. However, it is still a developing concept. It has been used with restraint, without creating any hindrances in the way of India’s essential socio-economic reforms. Also, it has been included in India’s Constitution in a way that this supports the country’s growth, rather than letting power and authority being misused by the Executive, Legislature or Judiciary. The evolution of this concept over the years is quite evident and is also a proof of the credibility of this concept’s mechanism.
“If judicial review means anything, it is that judicial restraint does not allow everything.” – By: Don Willett.
 5 U.S. (1 Cranch) 197 (1803), available at, https://supreme.justia.com/cases/federal/us/5/137/ 1967 AIR 1643 AIR 1973 SC 1461 Civil Appeal No. 481 of 1980, AIR 1997 SC 1125  AIR 1952 SC 196  AIR 1950 SC 27  AIR 2017 SC 2967 pp. 3006, 3007, 3011  AIR 2017 SC 4609  AIR 2016 SC 163 p. 181  (2015) 2 SCC 796 AIR 2019 SC 1074 Also see, “Constitutional Law of India” by Dr. J.N. Pandey, Pg. 30, Para 6.