1. Introduction

Judicial review is a doctrine under which the judiciary has the power to review the constitutionality of legislative enactments and executive orders of both the Central and State governments. This means that the judiciary has the authority to examine the actions of the legislative, executive, and administrative arms of the government and determine whether such actions are consistent with the Constitution. [1][2]

In other words, judicial review is the power of the courts to evaluate and examine the constitutionality of laws and executive orders. Each law needs to be within the ambit of the Constitution. If, after review, the law or order violates the Constitution (ultra vires), it becomes unconstitutional and void.

Justice Syed Shah Mohamed Quadri has classified judicial review into three main categories:

1. Judicial review of constitutional amendments.
2. Judicial review of legislation of the Parliament and State Legislature and subordinate legislations.
3. The judicial review of administrative actions of the Union and State and its authorities.

This means that the power of the legislature to make laws is not absolute and that the validity and constitutionality of such laws are subject to review by the courts. Judicial review is also called the interpretational and observer roles of the Indian judiciary. [3]

2. Importance

Judicial review is a fundamental aspect of a democratic society and plays a crucial role in maintaining the rule of law.

1. Upholding the Constitution: Judicial review is necessary to uphold the principle of supremacy of the Constitution. It ensures that all laws and actions of the government are by the Constitution.
2. Preventing Misuse of Power: The provision of judicial review prevents the misuse of power by the legislature and executive. It acts as a check and balance on the powers of the government, ensuring that they do not exceed their constitutional limits.
3. Maintaining Federal Equilibrium: Judicial review helps maintain the equilibrium between the centre and state, thereby maintaining federal equilibrium. It ensures that neither the central government nor the state governments overstep their constitutional boundaries.
4. Protecting Fundamental Rights: The provision of judicial review protects the fundamental rights of the citizens. If a law or government action infringes upon the fundamental rights guaranteed by the Constitution, it can be challenged in court through the process of judicial review.
5. Ensuring Independence of Judiciary: This provision ensures the principle of the independence of the judiciary. The judiciary, through the power of judicial review, can function independently and make unbiased decisions based on the Constitution.
6. Promoting Democratic Responsiveness: Judicial review helps safeguard a constitutional systems responsiveness to democratic majority understandings. It enables individuals to vindicate their rights against the government in ways that parallel those they commonly use against each other. [4][5][6][7]

3. Process

The process of judicial review involves several steps. Here is a detailed explanation:

1. Initiation: The process of judicial review is initiated by an aggrieved partys petition. This means that an individual or group who believes their rights have been violated by a law or government action can bring a case before the court.
2. Preliminary Scrutiny: Once a case is brought before the court, there is preliminary scrutiny. This is where the court examines the initial evidence and arguments to determine whether there is a valid basis for the case.
3. Comprehensive Hearings: If the court determines that there is a valid basis for the case, it proceeds to comprehensive hearings. During these hearings, both sides present their arguments and evidence in more detail.
4. Final Judgment: After the comprehensive hearings, the court makes a final judgment. This is where the court decides whether the law or government action in question violates the Constitution.

Its important to note that judicial review is not automatically applied. Its also not suo motu, which means it doesnt happen on its own or without a trigger. The trigger, in this case, is the petition from an aggrieved party.

This rigorous procedure reflects the judiciarys commitment to safeguarding constitutional governance and citizens rights. It ensures that the government acts within the law and respects the rights and freedoms of individuals. [8][9][10][11]

4. Judicial Review in Different Jurisdictions

United States: The concept of judicial review originated in the United States, propounded for the first time in the historic landmark case of Marbury vs. Madison in 1803. The U.S. Supreme Court has the power to declare laws unconstitutional. It efficiently elaborated the power of judicial review to review the constitutionality or unconstitutionality of the acts of Congress as well as the acts of the state legislature.

United Kingdom: In the United Kingdom, there is no express provision for judicial review, and it is dependent on the discretion of the Court. The acts of Parliament are unchallengeable as the UK operates under the principle of Parliamentary Sovereignty where the will of the people is absolute. However, the judicial review of primary legislation is restricted by Parliament to matters involving human rights and individual freedoms. Legislation that serves as a secondary law can be challenged in court. Executive and administrative decisions can be reviewed by UK courts.

India: In India, the constitution itself confers the power of judicial review on the judiciary, both the Supreme Court and the High Courts. Any law or order that violates the Constitution can be declared unconstitutional, null and void by the court. The Indian parliament has embraced the U.S. Constitutions judicial review system, in which the parliaments powers are not ultimate, and power is divided between the Centre and the states. The concept of judicial review is stronger in the USA and India as compared to the UK in a certain perspective.

While the concept of judicial review is present in all three jurisdictions, the extent of its application and the powers of the judiciary vary. The U.S. and India have a more robust system of judicial review compared to the UK. [12][13][14]

5. Conclusion

Judicial review stands as a crucial pillar of any democratic society, safeguarding the rule of law, protecting fundamental rights, and ensuring government accountability. It empowers the judiciary to hold the legislative and executive branches in check, preventing the abuse of power and maintaining a delicate balance between the different arms of government. While the details of its implementation may differ across jurisdictions, the core principles of judicial review remain relevant to any society striving for a just and equitable governance system.

6. Citations