What is the power of judicial review?

written by Howard

The power of judicial review is the power of the courts, ultimately of the Supreme Court, to interpret the Constitution and to declare any legislative or executive act invalid because it is in conflict with the fundamental law. This authority is derived by clear implication from the provisions of Secs 4 (2,3) & 5 (2,a,b), Art 8 of the Constitution.

Through such power, the judiciary, the SC particularly, enforces and upholds the supremacy of the Constitution. It is because the Courts are the official (but not necessarily the only) interpreters of the Constitution that a study of our Constitution is, in large measure, a study of judicial decisions and opinions on the meaning and application of its provisions.

The power of judicial review now includes “the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” This is true although the question before the court may be political in character, which ordinarily cannot be inquired into by the courts.

Functions of Judicial Review

  1. Legitimizing Function – Validity of the act – Must be so declared by the Court as it affects a lot.
  2. Check Function – SC’s function to check an act’s or a law’s constitutionality.
  3. Symbolic Function – Moot and Academic Principle

Limitations on the Exercise of the Power of Judicial Review

  1. There must be a concurrence of at least a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon;
  2. A law etc., must be sustained unless clearly repugnant to the Constitution in view of the presumption of validity. Presumption of validity prevails over what is otherwise.
  3. The question of wisdom, propriety, or necessity of a law etc., is not open to determination by the court;
  4. Political questions are generally addressed to the political branches (President and Congress – elective officers) of the government and are, therefore, not justiciable.