Scroll Top


Judicial review is defined as the procedure by which a court finds any statute that violates the constitution to be null and void. The judicial organ has the authority to determine the constitutional


Judicial review is defined as the procedure by which a court finds any statute that violates the constitution to be null and void. The judicial organ has the authority to determine the constitutional legitimacy of activities carried out by other government organs. Legislative Action and Laws passed by the legislature can be subjected to such scrutiny. It is based on the theories of limited government and the supreme law of the nation, which is the Indian constitution. The constitution provides government organs and powers, but it also states that any new legal developments whose contents contradict the supreme law’s core framework must be deemed void. As a result, an organ, the judiciary, is required to declare such acts void after correct interpretation.

Origin of the doctrine

The doctrine of judicial review was borrowed from the United States of America’s constitution, where it is used more broadly and strictly. In the well-known case of Marbury v. Madison, where President Adam’s time as a member of the federalist party came to an end and the anti-federalist party assumed control, this argument was advanced. On his last working day, Adam appointed members of the federal party to 42 new positions as judges. President Jefferson, on the other hand, was opposed to such appointments when the Antifederalist faction acquired power. As a result, the secretary of state was unable to distribute the appointment letter to the other judges. Marbury, one of the justices whose appointment had been canceled, filed a writ of mandamus petition with the Supreme Court. Instead of hearing the plea, the court deemed the legislative directive ultra-vires and unlawful. As a result, the United States Supreme Court established the doctrine of judicial review.                                                                                                                              

Position of Doctrine in India

The Supreme Court of India is the last interpreter and custodian of the Indian Constitution. By prohibiting and quashing any arbitrary or unconstitutional legislative or administrative action, the Supreme Court is responsible for upholding India’s democratic system and defending citizens’ rights. The Supreme Court’s power of judicial review was established by the Constitution’s drafters to allow the Supreme Court to check the actions of other government bodies. The constitution recognizes this theory in several articles, including Articles 13, 32, 131 to 136, 143, 226, and 246. Although there is no clear or direct provision of the concerned theory in the constitution, it is impliedly affixed therein, and its applicability is generally confirmed by judicial precedents. According to Article 13, the Indian courts have a constitutional obligation to interpret the constitution and declare laws unlawful if they are deemed to violate any right under Part III of the Indian constitution. The supremacy of the rule of law is upheld by judicial scrutiny. The role of judicial review is an integral part of constitutional interpretation. The judicial review encompasses both previous and future legislation. Its main goal is to defend the rights guaranteed by Part III of the constitution. The Supreme Court and the High Courts are given this jurisdiction via Articles 32 and 226 of the constitution, which are considered inviolable core structures of the constitution.

Articles 245 and 246 provide parliament with the ability to make laws. In Article 245, the phrase “subject to the provisions of the constitution” affirms the courts’ judicial review power and authorizes them to strike down unconstitutional laws. Administrative activities can also be challenged by the Supreme Court or the High Courts on grounds of arbitrariness, illegality, ultra vires, unreason ability, and so on. The application and span of judicial review are found highly limited under the provisions as compared to the original form of it, which is applied in the USA. In the Indian constitution, fundamental rights are accordingly explained and any limitations permissible on them are broadly mentioned within the text, and the task of defining those limits is not left to the judiciary. If the case would be otherwise, the judiciary would be raised to the level of super-legislature, which contradicts the balance of power and federalism. The scope of fundamental rights has been decreased to some extent over the years as a result of many constitutional modifications, resulting in a limited scope of judicial review. The Supreme Court plays a crucial role in the Indian constitutional process, interpreting statutes, and formulating new constitutional jurisprudence whenever a significant question of law arises. When the courts’ verdicts are detested by the legislative authorities, the courts have been accused of usurping their authority. In numerous case judgments, several judges have defended the concept of judicial review by clarifying the scope and grounds of such power in India. In exercise of this power, the Indian judiciary has propounded several doctrines, necessary for proper implementation of this doctrine, such as the doctrine of the eclipse, which hides or makes dormant those laws that are in contravention of fundamental rights. Such laws are not erased, rather they exist inactively. The doctrine of severability declares a part or provision of a statute that violates the constitution void while preserving the rest of the act’s application and operation. The idea of territorial nexus, the doctrine of prospective overruling, the doctrine of pith and substance, the doctrine of harmonic construction, and the doctrine of colorable legislation are some of the other important doctrines that have emerged.


In Kesavananda Bharti V. State of Kerala AIR 1973 SC 1461, Khanna J. emphasized that the power of judicial review shall be employed to ensure that the rights provided by law are not violated as long as fundamental rights exist and are part of the Indian Constitution. As a result, judicial review is an important aspect of the constitutional system.

In Minerva Mills V. Union of India AIR 1980 SC 1789, The job of judges, according to Chandrachud C.J., is to pronounce the legality of legislation. Fundamental rights will become only ornamental if courts are stripped of their power, as rights without remedies are as writ in water.

In Binoy Viswam v. Union of India AIR 2017 SC 2967, The Supreme Court ruled that courts can only declare a law passed by the parliament or a state legislature invalid on two grounds:

  1.     it is not within the legislative competence of the legislature that passed it, or
  2.     it violates any of the fundamental rights outlined in Part III of the constitution, or any other right or provision of the constitution.


The notion of judicial review, which originated in the US Supreme Court, has been integrated into the Indian constitution. This theory empowers India’s Supreme Court and high courts to examine and declare void any legislative or administrative action that violates the Constitution’s mandates and ideals. Though the Indian constitution follows the notion of separation of powers for the autonomous working of all institutions, the judicial review gives the judiciary the jurisdiction to maintain checks and balances of authority among government organs. The judiciary is the final interpreter and custodian of fundamental rights, thereby it’s their duty to interpret each past and future legislation and declare its constitutionality after proper construal. Since no specific article promulgates provision for judicial review in India, it is impliedly instituted in several articles, such as Article 13 of the Constitution, which provides for the protection of fundamental rights under Part III from unlawful and conflicting actions and legislation via judicial review.

However, it is found, that the application of such a wide doctrine and its functions have been narrowed down which makes its application restricted within India. By subsequent amendments and legislation over decades, the judiciary’s power to declare any law void has been restricted on two grounds. The exceptions provided within Part III, under each fundamental right, limited the discretion of the judiciary to decide upon the constitutionality, whereas in the USA, it has been left open to the judiciary to decide the exceptions and infer constitutionality. In India, judicial precedents have improved the Indian judiciary’s ability to exercise judicial review. It is formulated as part of the constitution’s interpretation and has been recognized as an inviolable ingredient of the Indian constitution’s basic structure. Several new doctrines have emerged as a result of these developments, simplifying the application of judicial review to Indian laws.

Author(s) Name: Huda Naaz (Faculty of Law, Aligarh Muslim University)