Вы находитесь на странице: 1из 2


Judicial Review is the power of the Courts to determine the constitutionality of Legislative act in a
case instituted by aggrieved person. It is the power of the Court to declare a legislative Act void on
the grounds of unconstitutionality.
Judicial Review is not an expression exclusively used in constitutional law. Literally, it means the
revision of the decree or sentence of an inferior court by a superior court; it works through the
remedies of appeal, revision and the like, as prescribed by the procedural laws of the land,
irrespective of political system which prevail.
Judicial Review has, however, a more technical significance in public law, particularly in countries
having the written Constitutions, founded on the concept of limited government. Judicial Review,
in the constitutional law of such countries, means that courts of law have the power of testing the
validity of legislative as well as other governmental actions. Judicial Review prevails in those country
which have written Constitution. It means that the Constitution is the supreme law of land and any
law inconsistent therewith is void. The courts perform the role of expounding the provisions of the
Constitution and exercise power of declaring any law or administrative action which may be
inconsistent with the Constitution as unconstitutional and hence void.
The system of Judicial Review prevailed in a country having a federal Constitution. The power of
judiciary is not limited to enquiring about whether the power belongs to the particular legislature
under the question it extends also as to whether the laws are made in conformity with and not in
violation of other provisions of the Constitution. For example, in our constitution, if the courts find
that the law made by legislature Union or State is violation of the various fundamental rights
guaranteed in part III, the law shall be struck down by the courts an unconstitutional under Art.
13(2). Similarly where the courts find that the law is violation of Art. 301 which makes available to all
persons the freedom of trade, commerce and inter-course throughout the territory of India, the law
shall be struck down. Again where the courts find that there has been exclusive delegation of
legislative power a particular case, the parent Act as well as the product, i.e. delegated legislation
shall be struck down as unconstitutional.

The Court also performs the interpretative functions and keeps into consideration that the society
does not stand still; it is dynamic and not static; social and economic conditions change continually.
Therefore, the courts must so interpret the Constitution that it does not fall behind the changing,
contemporary societal needs. The words of the Constitution remain the same, but their significance
changes from time to time through judicial interpretation.

The interpretative function of the Constitution is discharged by the Courts through direct as well as
indirect Judicial Review. In direct Judicial Review, the court overrides or annul all enactment or an
executive act on the ground that it is inconsistent with the Constitution. In indirect Judicial Review,
the court attempts to give such interpretation to the impugned statute so that it may be held

If the courts want to ignore any law on the ground that it violates the Constitution, declaration by
the Court of its unconstitutionality is essential. The voidness of law is not a tangible thing which can
be noticed as soon as it comes into existence, a declaration that it is void is necessary before it can
be ignored. The Court does not suo moto decide unconstitutionality in the present system of
Judicial Review in India or in America, unless moved by an aggrieved party and also, unless the
determination of unconstitutionality be necessary for the decision of the case. The legislature itself
being the maker of law is not competent to determine the constitutionality of any legislative Act. An
unconcerned independent and impartial body like the court is the proper authority to look into
legislative lapses. This is necessary for the maintenance of the spirit of democracy.

Judicial Review is a great weapon through which arbitrary, unjust harassing and unconstitutional
laws are checked. Judicial Review is the cornerstone of constitutionalism which implies limited
The concept of Judicial Review has it foundation on the following constitutional principles:
The Government that cannot satisfy the governed, the legitimacy of its action cannot be
expected to be considered legitimate and democratic and such government also cannot
expect to receive the confidence and satisfaction of the governed.
The government in a democracy is a government of limited powers, and a government with
limited powers has to take recourse to a machinery or agency for the scrutiny of charges of
legislative views and constitutional disobedience, and such act of scrutiny can be done
impartially and unbiasedly only by the court.
Each citizen in a democracy, who is aggrieved of a legislative Act on the ground of
constitutional violation, has the inherent right to approach the court to declare such
legislative Act unconstitutional, and void.
In a federal State, judicial arbitration is inevitable in order to maintain balance between the
Centre and the State.
Where the constitution guarantees the fundamental rights, legislative violation of the rights
can be scrutinized by the court alone.
The legislature being the delegate and agent of the sovereign people has no jurisdiction and
legal authority to delegate essential legislative function to any other body.