Judicial review is defined as the power of the courts to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and hence void1. In other words, Judicial Review refers to the power of the judiciary to interpret the Constitution and to declare any such law or order of the legislature and executive void, which conflict the Constitution of India.
The Supreme Court of India has the supreme responsibility of interpreting and protecting the Supreme Law of the land i;e the Constitution of India it. Judiciary also acts as the guardian-protector of the Fundamental Rights of the people. For this purpose, the Supreme Court exercises the power of determining the constitutional validity of all laws. It has the power to reject any law or any of its part which is found to be unconstitutional. This power of the Supreme Court is called the Judicial Review power.
Various articles in the Constitution of India, such as Articles 32, 136, 226, and 227 guarantees judicial review of legislation and administrative actions and are discussed and debated upon by the top Supreme Court lawyers. The concept of judicial review is crucially inter-connected with the protection of fundamental rights because if courts would be deprived of their power of judicial review would be tantamount to making fundamental rights non-enforceable, a mere adornment as they would then become rights with no remedy.
Therefore it is said that in the absence of judicial review, the written constitution will be reduced to a collection of platitudes without any binding force2. In the famous fundamental rights case3 Justice Khanna has said that as long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened and thus judicial review has become an integral part of the constitutional system. Justice Chandrachud in Minerva mills case4 while speaking on behalf of majority again emphasised the importance of judicial review and said that “it is the functions of the judges, nay their duty, pronounce upon the validity of laws.
If courts were totally deprived of their power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled.” In this case, only justice Bhagwati gave a dissenting opinion and said “it is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of rule of law which inter alia requires that the exercises of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law.
The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and rule of law would become a teasing illusion and a promise of unreality. I am of the view if there is one feature of our Constitution which more than any other is basic and fundamental to the maintenance of democracy and the rule of law it is the power of judicial review and it is unquestionably to my mind the basic feature of the Constitution.” However, justice Bhagwati although emphasised the importance of judicial review but at the same time he was of the opinion that it is not necessary to concentrate power of judicial review in courts if alternate tribunals are set up which are as efficacious and independent as the High Court’s then the power of judicial review can be transferred to such tribunals.
In another case5 justice, Bhagwati has observed that judicial review is a basic and essential feature of the constitution and no law passed by the parliament in the exercise of its constituent power can abrogate it or take it away. If the power of judicial review is abrogated or taken away the Constitution will cease to be what it is.
1. E.S Crown-Essay on the Judicial Review in the encyclopedia of social sciences; Vol VIII
2. Indian Constitutional Law; M.P.Jain; 7th edition
3. Keshvananda Bharti v. the State of Kerala; AIR 1973 SC1416
4. Minerva mills v. UOI; AIR 1980 SC1789
5. S.P. Sampath Kumar v. UOI; AIR 1987 SC 386