Question

Answer the following in detail with reference to the given points.

Explain the process of judicial review?

1. meaning
2. need
3. when and where it started
4. Indian context

Answer 1

1. Meaning: Judicial Review means the power of the Judiciary to examine if any law passed by the legislature or any executive policy or action is consistent with the Constitution or not, and if it is not then to declare it as unconstitutional and hence null and void.
2. Need: It becomes necessary to have an institution that would examine whether the laws are consistent with the Constitution or not. That institution should also have the power to declare any law found inconsistent with the Constitution to be invalid and therefore not to be implemented. This would prevent the Legislature from making laws that violate the Constitution. In democracies with written Constitutions, this power is vested in the Judiciary. The Judiciary is not involved in any way in the law-making process. It is an independent body. Hence it has been assigned this power.
3. When and where it started: The origins of the power of Judicial Review can be traced to a decision of the Supreme Court of the United States of America given in 1803 in a case known as Marbury vs Madison case. This was for the first time that the American Supreme Court declared a law passed by the United States Congress to be invalid on the grounds that it was inconsistent with the Constitution of the United States. However, it must be noted that the American Constitution does not have any explicit provision that gives the Judiciary the power of Judicial Review. It is an implied power. Till date, the American Supreme Court's power of Judicial Review has been unchallenged. This is SC because it is accepted that such a power is necessary to retain the supremacy of the Constitution.
4. Indian Context: The Constitution of India does not explicitly provide the judiciary with the power o· Judicial Review. However, like in the United States, these powers are implied. The Supreme Court o; India has on many occasions declared laws passed by the Legislature as being inconsistent with the Constitution and therefore unconstitutional. In the Indian context, the real issue has been whethe1 the amendments to the Constitution can be held unconstitutional. The issue was settled by the Supreme Court in the Kesavananda Bharati case (1973). In its judgment, the Court stated that the Constitution of India had a 'Basic Structure'. The Constitutional Amendments passed by the Parliament have to be consistent with this 'Basic Structure', and if they are found to be not, then the Supreme Court would declare them unconstitutional. The power to declare any Amendments as unconstitutional rests only with the Supreme Court.