UNIT-IV

The Judiciary: Judicial Review

-Jerry Lalmuansanga
Assistant Professor
Dept. of Political Science
Govt. Aizawl North College
 Introduction
-The doctrine of Judicial Review (JR) originated and
developed in the USA.
- It was propounded for the first time in thefamous case
of Marbury vrs. Madison (1803) by John Marshal, the
then Chief Justice of the American Supreme Court.
- In India, the Const. itself confers the power of JR on
the judiciary (both the SC as well as HC’s).
- Further, the SC has declared the power of JR as a
basic feature of the Const. or an element of the basic
structure of the Const.
- Hence, the power of JR cannot be curtailed or
excluded even by a constitutional amendment.
 Meaning of Judicial Review
-JR is the power of the judiciary to examine the
constitutionality of legislative enactments and
executive orders of both the Central and state
govts.
- On examination, if they are found to be violative
of the const. (ultra-vires), they can be declared as
illegal, unconstitutional and invalid (null and
void) by the judiciary.
- Consequently, they cannot be enforced by the
govt.
 Importance of Judicial Review
- JR is needed for the following reasons:
a)To uphold the principle of the supremacy of the
Const.
b) To maintain federal equilibrium (balance
between the Centre and the states).
c) To protect the Fundamental Rights of the
citizens.
 Constitutional Provisions for JR
- Though the phrase ‘JR’ has no where been used
in the Const, the provisions of several Articles
explicitly confer the power of JR on the SC and
the HC’s.
-Some of the provisions are explained below:

1. Art. 13 declares that all laws that are

inconsistent with or in derogation of the FR’s shall
be null and void.
2. Art. 32 guarantees the right to move the SC for the
enforcement of the FR’s and empowers the SC to
issue directions or orders or writs for that purpose.

3. Art. 131 provides for the original jurisdiction of the

SC in Centre-State disputes.

4. Art. 132 provides for the appellate jurisdiction of

the SC in constitutional cases.

5. Art. 133 provides for the appellate jurisdiction of

the SC in civil cases.
6. Art. 134 provides for the appellate jurisdiction
of the SC in criminal cases.

7. Art. 226 empowers the HC’s to issue directions

or orders or writs for the enforcement of the FR’s
and for any other purposes.

8. Art. 227 vests in the HC’s the power of

superintendence over all courts and tribunals
within their respective territorial jurisdictions
(except military courts or tribunals).
 Scope of Judicial Review
- The constitutional validity of a legislative
enactment or an executive order can be challenged
in the SC or in the HC’s on the following grounds:
i) It infringes the FR’s (Part-III).
ii) It is outside the competence of the authority which
has framed it, and
iii) It is repugnant to the constitutional provisions.
- From the above, it is clear that the scope of JR in
India is narrower than what exists in the USA,
though the American constitution does not explicitly
mention the concept of JR in any of its provisions.
THANK YOU