• Lex Specialis


Monika Mehra

Judicial review, is in a sense, the very life-breath of the Constitution of a vibrant, working constitutional democracy. It is that which provides sinews for enforcement of rights, protection of liberty and upholding the rule of law. Judicial review is the exercise of power by superior courts to test the legality of any governmental/ State action. It is the exertion of the Court’s inherent power to determine whether an action is lawful or not and to grant appropriate relief and is a fundamental mechanism for keeping public authorities within due bounds and for upholding the rule of law. It is an incident of and flows from the concept of a fundamental higher law. This is in one sense the doctrine of ultra vires in Constitutional law. Judicial review and the power to invalidate validly enacted laws on the touchstone of the Constitution is what is broadly and perhaps euphemistically called Judicial Supremacy. But in a democratic country governed by a written Constitution it is the Constitution which is supreme and sovereign. What obtains is Constitutional Supremacy The conventional usage of the term judicial review could be more accurately described as “constitutional review,” because there also exists a long practice of judicial review of the actions of administrative agencies that require neither that courts have the power to declare those actions unconstitutional nor that the country have a written constitution. Such “administrative review” assesses the allegedly questionable actions of administrators against standards of reasonableness and abuse of discretion. When courts determine challenged administrative actions to be unreasonable or to involve abuses of discretion, those actions are declared null and void, as are actions that are judged inconsistent with constitutional requirements when courts exercise judicial review in the conventional or constitutional sense.

Range and Reach of Judicial Review has developed to the point where it is possible to say that no power- whether statutory or under the prerogative- is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scope and its substance. Even when discretionary powers are engaged they are not immune from judicial review- Smith. No power is inherently unreviewable and in a constitutional democracy wedded to the rule of law, unfettered and unreviewable discretion is a contradiction in terms- Wade. All this has been quoted with approval by the Supreme Court. The Constitution is the supreme law from which all organs derive their authority and within whose confines they have to act. It is for the Court to uphold constitutional values and enforce constitutional limitations. Judicial review does not mean supremacy of the judiciary but that of the Constitution. It is universally recognised that the range of judicial review exercised by the superior Courts in India is perhaps the widest and most extensive known to the world of law


Judicial review in India comprises of three aspects:

(1) Judicial review of legislative action,

(2) Judicial review of administrative action,

(3) Judicial review of judicial decisions.

Thus, judicial review is a highly complex and developing subject. It has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution. The court in the exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens' rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.

The limits on the power of judicial review is a recurring theme in the evolution of our Constitution. In some of its distinguished judgments, the Supreme Court has defined the outline of sovereign power as distributed amongst the three branches of government namely, the legislature, the executive and the judiciary.

There is a compelling case that the power of judicial review delegated to our superior courts in various provisions of the Constitution itself is as much by the command of the people. But people who are in favour of this view argue that judicial inquiry of the validity of legislation is a necessary protection against the oppression of majorities, that the judges do not check the people, the Constitution does and since the Constitution itself is popularly ratified, there is nothing undemocratic in the power of judicial review. The power of judicial review is a part of the basic structure of the Constitution, permanent even by a constitutional amendment as affirmed by the Supreme Court in Keshvananda Bharati. And, representative democracy as an expression of the people's will, speaking through their elected representatives is a non-negotiable principle of our republican agreement which itself is the product of an exercise of the unbroken sovereign power.

The Supreme Court of India as the guardian of democratic morality will without a doubt remember that the exercise of constitutional power is persistent in the final analysis by the intellectual integrity, independence and fearlessness of judges.


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