Chapter 3: Judicial Review

Topics for study:

(a) Evolution and concept of Judcial Review

(b) Meaning of Judicial Review
(c) Characteristics of modern constitution and impact on Judicial Review
(d) Constitutional growth in India under Judicial Review and it’s impact
(A) Evolution and concept of Judicial Review:

The United States of America gave to the world a new gleam of judicial review. The concept of
judicial review as evolved in America was the result of continuous thinking and growth. It had
the heritage of Plato and Aristotle also.

The doctrine of judicial review of the United States of America is really the precursor of judicial
review in other constitutions of the world which evolved after the 18th century and in India also
it has been a matter, of great inspiration.

"From a historical point of view Marbury V. Madison ,1803 is of crucial importance as the first
case establishing the power of the 2 Supreme Court to review constitutionality" . The system of
judicial review thereafter became the integral part of the system

Thus the particular phraseology of the constitution of the United States confirms and strengthens
the principle, supposed to be essential to all the written constitutions, that a law repugnant to the
constitution is void; and that courts as well as other departments are bound by that instrument".

(b) Meaning of Judicial review:

Judicial review is the power of the courts to determine the constitutionality of legislative acts. It
determines the ultra vires or intra vires of the Act s challenged before it.

Judicial review is not an expression exclusively used in Constitutional Law. Judicial review,
literally means the revision of the decree or sentence of an inferior court by a superior court.

Judicial review has however, a more technical significance in public law, particularly in
countries having a written constitution where the courts perform the role of expounding the
constitution and exercise power of declaring any law or administrative action which may be
inconsistent with the constitution as unconstitutional and hence void.

This judicial function stems from a feeling that a system based on a written constitution can
hardly be effective in practice without an authoritative, independent and impartial arbiter of
constitutional issues and also to restrain governmental organs from exercising powers which may
not be sanctioned by the constitution.
A federal constitution effects division of powers - legislative, executive and in some cases
judicial also between the General and Regional Governments established under it and which
according to the true federal principles are coordinate and independent of each other in the areas
allotted to them by the constitution. The two governments thus operate simultaneously upon the
same people and territory.

The distribution of legislative powers, which is the hall-mark of a federal constitution, quite
often presents an important question as to who is to decide in case of a dispute as to whether the
law made by the state legislative encroaches upon the area assigned to the central legislature or
vice versa.

For the purpose of resolving such disputes, the power is given to the courts and they are vested
with the power of Judicial review, as to the validity of the laws made by the legislature. The
power of judicial review is not limited to enquiring about whether the power belongs to the
particular legislature under the constitution. It extends also as to whether the laws are made in
conformity with and not in violation of other provisions of the constitution. For example in our
constitution, if the courts find that the law made by legislature - union or state is violation of the
various fundamental rights guaranteed in Part III the law shall be struck down by the courts on
unconstitutional under Article 13(2).

Kinds of Judicial Review:

1. Direct review: The direct judicial review involves the court to declare a legislative
enactment or an executive act as null and void because it is unconstitutional.
2. Indirect review: In the other type of judicial review which is termed indirect, the court
attempts to give such interpretation to the impugned statute so that it may be held
constitutional. Such a situation can arise only in those cases where a statute is susceptible
of double meaning- one which would make the statute unconstitutional and the other
which would steer clear the element of unconstitutionality and in such a situation the
court would be prove to adopt that construction of the statute which would save it from
being held unconstitutional.

(c ) Characteristics of modern constitution and impact on Judicial Review:

1. Constitution of Canada, Australia:

The constitutions of Canada, Australia and U.S.A. do not contain any provisions for direct
judicial review, but it has become an integral part of the constitutional law of these countries.

2. Position in U.S.A
The American judicial review, however, is a peculiar Governmental feature among the nations
of the world. It is a limitation on popular government and is a fundamental part of the
Constitutional Scheme of America.

The concept of Judicial Review has its foundation on the doctrine that the constitution is the
supreme law.

It has been so ordained by the people, and in the American conception, it is the ultimate source
of all political authority. The constitution confers only limited source powers on the legislature.
If the legislature consciously or unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to
indicate and presence inviolate the will of the people as expressed in the constitution.

Characteristics of Judicial Review:

(a) The Government that cannot satisfy the governed of the legitimacy of its action cannot
expect to be considered legitimate and democratic, and such government also cannot expect to
receive the confidence and satisfaction of the governed.

(b) The government in a democracy is a government of limited powers, and a government with
limited powers has to take recourse to a machinary or agency for the scrutiny of charges of
legislative vices and constitutional disobedience, and such act of scrutiny can be done impartially
and urbiasedly only by the court.

(c) Each citizen in a democracy, who is aggrieved of a legislative Act on the ground of
constitutional violation, has to inherent right to approach the court to declare such legislative Act
unconstitutional and void.

(d) In a federal state, judicial arbitration is inevitable in order to maintain balance between the
Centre and the State.

(e) Where the constitution guarantees the fundamental rights, legislative violations of the rights
can be scrutinized by the court alone.

(f) The legislature being the delegate and agent of the sovereign people has no jurisdiction and
legal authority to delegate essential legislative function to any other body.

Constitutional growth in India under Judicial Review and its impact:

1. Art. 13(2):
It states the Indian Constitution believed that countrywide shall not create any
regulation, those abbreviates or take absent the right as deliberated in its Part three, in
respect of important rights of the inhabitants of India. If any rule was created against
this clause of the Constitution, it will come within the purview of infringement and
will be declared as void.
 2. Art. 131 :
This article of the Indian Constitution states that for dispute between two States or
difference amongst Indian government and states one or more or between two or more
than two state. If the question involved of law and fact on which the legal rights depend.
The judicial review is subject to provision under the Article 131of the Indian Constitution.
3. Art.133: Article 133 judicial review can be made in the civil matters on plea from the
higher courts of states to the Supreme Court on receiving its final order, decree of
judgment of civil proceeding, within the domain of India.
The Supreme Court has appellate jurisdiction for judicial review, in respect of
criminal matters. Any final order or sentence and judgment, passed by the High Court,
the person can file an appeal against this judgment.
4. Art.317: In respect of removal or suspension of a public servant, rules on the matter of
summary determination of the appeal, provided to the court, which may be vexatious or
frivolous, which are conveyed to the court for the purpose of delay, rules on the matter of
review and the procedure of review including the time within, which the application to be
entertained for that the review to be entered by the court.
5. Issue of writs and Judicial Review

The court principally adopts the strategy of judicial review using writs to grant the rights of
appeal, or to grant extraordinary relief or to direct the authority to seize the property. However,
in Article thirty-two of the Constitutional necessities is completed that the S.C.I. under Article
two hundred twenty-six of issue writs in case of infringement of fundamental rights. There are
five types of writs; habeas corpus, certiorari, mandamus, quo warranto and prohibition .