Judicial review is the process by which a court declares an unconstitutional law
invalid or void. Judicial review empowers the judiciary to keep up with the
check and balance system between the judiciary, executive and legislature, by
reviewing the legislations passed by parliament, and invalidate it, if it does
not comply with the provisions of the Constitution.
Judicial Review and Indian Constitution:
Judicial reviews may relate to the constitutional amendments, legislative acts,
and laws created by the legislature and enforced by the executive branch. Since,
the judiciary operates independently of the other two institutions, it
guarantees that, the laws created and enforced by these institutions do not
violate any of the provisions of the Indian Constitution.
In India, Art. 32
(Right to Constitutional Remedies) and Art. 136 (Original Jurisdiction) of the
Constitution empowers the Supreme Court with the function judicial review, and
similarly, under Art. 226 and Art. 227, the High Court has the authority to
perform judicial review.
Importance of Judicial Review:
- It ensures the Protection of Fundamental Rights Guaranteed by the
- It maintains the supremacy of the Constitution,
- It also regulates the Center-State matters and their relations by Art.
246 of the constitution, by providing the 3 constitutional lists.
- It safeguards the Independence of Judiciary,
- It guarantees Impartiality and Fairness in the actions of the
Legislature and Executive,
- It protects the basic structure of the constitution as well.
Limitations of Judicial Review:
- Judicial Review limits the actions of the government as, it is only
permitted to verify the legality of the procedures used to reach to a
certain legal decision
- The judicial pronouncements given by the judges for one case, becomes
the basis for deciding other cases as well.
- Repeated court intervention can undermine people's confidence, belief
and support in government's integrity, quality and effectiveness.
- The judiciary is deemed from interfering in the political questions,
policies and matters except absolutely essential.
- Since, the judgments can be influenced by personal or selfish
motivations, such decisions are detrimental to the general public.
- If the courts assume full and arbitrary control over judicial review, it
will result in government agencies providing poor performances.
- In India, attention is paid to the separation of functions, rather than focusing
on the separation of powers.
- The concept of separation of powers is not strictly followed in the
judicial review. However, to ensure this, a system of checks and balances
has been introduced, empowering the judiciary to strike down or overturn any
laws and orders passed by the legislature that is unconstitutional.
Scope of Judicial Review;
The scope of judicial review is limited in terms of both, its availability and
functionality. Here the role of the courts is nether of replication of the
disputed decision nor to consider the merits of those decisions, but simply, to
review the procedure that has given the pat for the decision. The courts have to
assess whether the decision made were wrong and should be overturned or not.
Judicial review in this sense is an authority of the court to investigate the
constitutionality of the actions and procedures of government agencies and
department, and declaring them as unconstitutional or invalid if they are in
violation or contradiction of the basic principles of the Constitution.
Such an administration of Judiciary has recently evolved in three dimensions,
the first aspect is, to ensure the impartiality of the legislative and executive
branches. The second aspect is, the protection of constitutionally guaranteed
fundamental rights of citizens, and the third aspect being, the decision on the
issues of legislative capacity existing between the center and the states.
Classification of Judicial Review:
- Review of Judicial Decisions:
Reviewing or Examining a court's decision basically refers to examining it
in such a way to determine whether the Supreme Court's decision was correct
or not. In simple terms, it also refers to the court's authority to
determine the constitutionality of the measures taken by state, federal
legislatures and courts.
- Review of Legislative Actions:
Article13 of the Indian constitution, talks about the judicial review of all
the enacted laws, and such an authority may promulgate unconstitutional
laws, regulations, statutes, ordinances, rules, and ordinances, which
granted to the High Courts and Supreme Court of India. All those actions
which violate the Fundamental Rights or other important provisions of the
constitution, are declared as void and it is declared to be unlawful. We can
trace the marks of judicial review of the legislative actions in the
landmark cases like; I. C. Golaknath and Others. v. State of Punjab and
Another. 1967; Kesavananda Bharti and Others. v. State of Kerala and
- Review of Administrative Actions:
The actions carried out, by authorities under the administrative law are
understood as administrative actions. It is a lawful action concerned with
the conduct of the public administrative authorities. The constitutionality
of the administrative action is verified by a test introduced by Lord
Diplock, which was in the case of Council of Civil Services Union v.
Minister of Civil Services 1984 The tests include:
The acts and verdicts of the decision makers can be declared as
illegal if they do not follow the law, or if they act beyond their stipulated
The courts can also interfere for quashing any decision if
they think that it is arbitrary, henceforth, making the move of the decision
makers as "unreasonable" or "perverse"
- Procedural Impropriety:
The onus is on the authority to act impartially
before taking and deciding any matter, since, any public body must not act
unethically since, it amounts to the abuse of power.
Judicial review is necessary to maintain the superiority of the Constitution,
which also ensures the prevention of abuse of power by the government and its
departments. It maintains a balance between the central and state, and thus a
federal balance is ensured. The judicial review provisions also protect the
fundamental rights of citizens.
This provision guarantees the principle of judicial independence. Therefore, the
concept of judicial review is of utmost importance and is therefore part of the
basic structure of the Indian Constitution, as in the case of Minerva Mills Ltd.
v. Indian Union and Others 1980. Therefore, in the end, it is correct to say
that judicial review has grown to protect individuals' right to stop the use of
arbitrary power and prevent false accusations.
Written By: Manav Puri
, MIT-WPU, BBA. LLB. (Hons.), Pune.