Judicial Review

Judicial review is the authority vested in courts to examine the constitutionality of legislative enactments, executive orders, and administrative regulations, nullifying any that transgress the supreme law. It functions as the principal safeguard of the rule of law, ensuring that the exercise of governmental power remains bounded by the constitutional charter that defines a nation’s fundamental rights and institutional structure. ## Historical Origins and Landmark Cases The doctrine first emerged in English common law through the 1610 case Dr. Bonham v. London where Sir Edward Coke asserted that “the King is a mortal man.” In the United States, the principle was crystallised by Chief Justice John Marshall in Marbury v. Madison (5 U.S. (1) 176, 1803), wherein the Court declared Section 13 of the Judiciary Act of 1789 unconstitutional, thereby establishing the power of judicial review. India adopted a similar framework after independence; the Supreme Court’s decision in Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461, 24 April 1973) introduced the “basic structure” doctrine, limiting Parliament’s amendment power. These milestones collectively forged a global jurisprudential tradition that places the judiciary at the apex of constitutional enforcement. ## Mechanism and Procedural Framework In the United States, the Supreme Court exercises review primarily through appellate jurisdiction, issuing writs of certiorari to lower courts; between 2000 and 2020, the Court granted review in roughly 2 % of petitions filed, reflecting a selective filter. Litigants must demonstrate standing, a concrete injury, and a causal link to the challenged act, as articulated in Lujan v. Defenders of Wildlife (504 U.S. (1992)). India’s system permits direct access to the Supreme Court via Article 32 writ petitions and to High Courts via Article 226, allowing individuals, NGOs, and even state governments to contest statutes, orders, or policies. The Indian judiciary routinely employs five writs—habeas corpus, mandamus, prohibition, certiorari, and quo warranto—each tailored to a specific remedial purpose, and the Supreme Court’s “public interest litigation” (PIL) route has expanded standing beyond traditional confines. ## Constitutional Provisions The U.S. Constitution does not expressly mention judicial review, yet Article III empowers the judiciary to interpret the law, a power inferred from the Supremacy Clause (Article VI, Clause 2). By contrast, the Indian Constitution explicitly enshrines review in Article 13(2), which declares any law inconsistent with the Constitution “void,” and Article 32, which guarantees the right to approach the Supreme Court for enforcement of fundamental rights. The Constitution of Canada codifies the doctrine in Section 52 of the Constitution Act 1982, stating that “the Constitution of Canada is the supreme law of Canada,” and empowers courts to strike down inconsistent statutes. Germany’s Basic Law (Grundgesetz) assigns the Federal Constitutional Court exclusive jurisdiction over constitutional complaints under Article 93(1), a model that has produced over 1 500 decisions since its inception in 1951. ## Comparative Perspective While the United Kingdom lacks a written constitution, the 1990 Factortame Ltd v. Secretary of State for Transport decision affirmed that domestic courts could suspend Acts of Parliament that contravene European Community law, effectively creating a de‑facto review mechanism. Canada’s post‑1982 framework has seen the Supreme Court invalidate more than 300 statutes, notably the 1999 R. v. Morgentaler ruling that struck down restrictive abortion laws. In contrast, South Africa’s 1996 Constitution embeds a robust review system in Chapter 2, allowing any court to declare legislation invalid if it breaches the Bill of Rights, a power exercised in the landmark Minister of Health v. Treatment Action Campaign (2002) case concerning HIV‑AIDS medication. These divergent models illustrate how constitutional architecture shapes the scope and intensity of judicial oversight worldwide. ## Contemporary Significance and Debates Recent U.S. jurisprudence, such as the 2022 Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade, demonstrates how judicial review can recalibrate national policy on contentious social issues. In India, the Supreme Court’s 2019 verdict in Madhya Pradesh High Court v. Union of India upheld the constitutional validity of the Goods and Services Tax (GST) regime, reinforcing fiscal federalism while prompting debate over the Court’s role in economic governance. Critics argue that expansive review may encroach on democratic legitimacy, citing the 2021 “Judicial Activism Index” which placed the Indian Supreme Court at rank 3 among 30 global courts for perceived