Author: Grahit Mudgal, Parsandi Devi College of Law, Greater Noida, Uttar Pradesh
TO THE POINT
Judicial review is the power of the judiciary to examine the laws and executive actions and declare them unconstitutional if they violate the constitution. It ensures constitutional supremacy and prevents misuse of power by the legislature and executive. This article will let us know about the judicial reviews by the courts and how it upheld the power of democracy and the rights of the people through various decisions by the judiciary.
USE OF LEGAL JARGON
Article 13: Laws inconsistent with fundamental rights as void
Article 32: Supreme Court to issue writs for enforcement of fundamental rights
Article 226: Grants similar powers to High Courts as Supreme Court with wider jurisdiction
ABSTRACT
Judicial review is a fundamental principle in modern democratic systems, empowering courts to examine the constitutionality of legislative and executive actions. By ensuring that laws and government actions comply with constitutional provisions, judicial review safeguards individual rights, maintains the balance of power among state institutions, and upholds the rule of law. This paper explores the concept, origin, scope, and significance of judicial review, highlighting its vital role in sustaining democratic governance while also examining criticisms and limitations.
INTRODUCTION
Democracy is built upon the principles of constitutional supremacy, separation of powers, and protection of fundamental rights. However, the mere existence of a constitution does not guarantee these ideals. Judicial review serves as a mechanism through which courts ensure that government actions remain within constitutional limits. It acts as a guardian of democracy by preventing abuse of power and protecting citizens against arbitrary state action.
Judicial review has become a defining feature of constitutional democracies across the world, including the United States, India, and several European nations. Its importance lies not only in constitutional interpretation but also in reinforcing democratic values and accountability. A democracy without judicial review risks degenerating into authoritarianism or majoritarian tyranny.
ORIGIN AND HISTORICAL DEVELOPMENT
The concept of judicial review was firmly established in the United States through the landmark case Marbury v. Madison (1803), where Chief Justice John Marshall asserted the judiciary’s authority to invalidate unconstitutional laws.
Over time, judicial review evolved globally:
In India, it was adopted from British constitutional principles and strengthened by a written constitution.
In Europe, constitutional courts were established to exercise judicial review.
In common law systems, judicial review expanded to include administrative actions.
The growth of judicial review reflects the increasing need for constitutional oversight in complex democratic societies.
JUDICIAL REVIEW AND DEMOCRACY
1. Protection of Fundamental Rights:
One of the most significant roles of judicial review is the protection of individual rights. Courts act as defenders of civil liberties by striking down laws that violate fundamental rights such as freedom of speech, law of equality, and personal liberty.
Without judicial review, majoritarian governments could undermine minority rights, threatening democratic pluralism.
2. Upholding the Rule of Law:
Judicial review ensures that all branches of government operate under the law. It reinforces the idea that no authority is above the constitution, promoting legal accountability and preventing arbitrary governance.
3. Maintaining Separation of Powers:
Democracy depends on a balance among the legislature, executive, and judiciary. Judicial review prevents concentration of power by checking excesses of the other branches and preserving institutional equilibrium.
4. Strengthening Constitutional Supremacy:
In democratic systems, the constitution is the supreme law. Judicial review ensures that constitutional values are respected and that ordinary laws do not override foundational principles.
Scope of Judicial Review
The scope of judicial review varies across countries but generally includes:
Review of constitutional amendments
Review of legislative enactments
Review of executive and administrative actions
Review of procedural fairness and reasonableness
In some democracies, courts have developed doctrines such as the basic structure doctrine to prevent constitutional amendments from destroying core democratic principles.
CRITICISM OF JUDICIAL REVIEW
1. Judicial Overreach:
Critics argue that excessive judicial intervention undermines the authority of elected representatives and may lead to judicial activism.
2. Democratic Legitimacy:
Since judges are often unelected, critics claim that judicial review allows unelected officials to override the will of the people.
3. Delay in Governance:
Judicial scrutiny can slow down process of policy implementation and legislative reforms. While these concerns are valid, most scholars agree that judicial review is necessary when exercised with restraint and respect for democratic processes.
Case Laws
1. A.K. Gopalan v. State of Madras:
Narrow the interpretation of Article 21 with various further descriptions
Early phase of judicial review with procedure established by law
2. Kesavananda Bharati v. State of Kerala:
Estbalished the Doctrine of Basic Structure of the constitution
Constitutional amendments by the parliament are subject to judicial review
Judicial review itself is part of the basic structure of the constitution of India
3. Indira Nehru Gandhi v. Raj Narain:
Struck down Article 329A of the constitution of India
Free and fair elections declared as a part of the basic structure of the constitution
4. Minerva Mills v. Union of India:
Controlled the power of parliament to amend the constitution
Strengthened constitutional supremacy
5. Maneka Gandhi v. Union of India:
Introduced substantive due process
Expanded scope of Articles 14, 19, and 21
Judicial review of executive action strengthened
6. Golakhnath v. State of Punjab:
Held Parliament cannot amend fundamental rights
Led to constitutional amendments and later judicial clarification.
CONCLUSION
Judicial review plays a pivotal role in preserving democratic governance. It protects fundamental rights, enforces constitutional supremacy, maintains the balance of power, and upholds the rule of law. While it must be exercised cautiously to avoid judicial overreach, its absence would weaken democracy and constitutionalism.
In an era of expanding state power and complex governance, judicial review remains an indispensable pillar of democracy, ensuring that power is exercised responsibly and in accordance with constitutional ideals.
FAQS
1. What is judicial Review
It is the power of the court to review the law made by the parliament to check whether it encroaches the rights of the people or not (fundamental rights).
2. why it is important
It ensures that the government stays in its constitutional limits and protects the fundamental rights of citizens from infringement.
3. what articles in the constitution in India for judicial review
Article 13,32 for Supreme court and article 226 for High Courts in India.
4. What remedies courts can provide in judicial review
Quashing orders or nullifying the decisions, prohibiting the orders by the authority or government
