INTRODUCTION
Judicial Review is a term that shows the ability of the court to look into the constitutional merits on legislative and executive actions with the aim of ensuring that any law, acts, decision, and omissions of the public authorities do not go against the Constitution of a given country. Under the Administrative law standards, the court is tasked with the mandate of interpretation as well as the enforcement of the provisions of statutes. The concept of separation of power has been internalized in the modern society in countries everywhere around the world. It confirms that sovereignty of the state must be split and shared equally among its organs, that is, the Legislature, the Executive, and the Judiciary. Written constitutions were adopted by modern democracies in an attempt to avoid potential abuse of power by the executive and legislature, to control their power and authority. The Constitution also gives the judiciary the power to protect these personal rights against the state whenever an action by the state deprives the citizens off their rights. Article 13 of the Indian Constitution gives the judiciary power to declare unconstitutional any legislature that contravenes the fundamental rights that are provided by Part III of the Constitution. This is despite the fact that France did have a written constitution since 1791. It also failed at the beginning to provide the judiciary with the power to repeal the laws that had been enacted by the legislature. France being a civil law country believes in a strict separation of powers between the legislature, the executive and the Judiciary. Nevertheless, the constitutional review of the legislation has been conducted since 1985 not by the regular courts but by the Constitutional Council or Conseil Constitutionnel. The process of Judicial review is not at all referred to in the US constitution. The Judicial review in the USA was initiated through a court ruling, and some conventions have enabled the Judicial review to persist. Chief Justice, John Marshall, made a ground breaking decision that guaranteed structural or constitutional provisions, as well as the concept of judicial review in USA.
EVOLUTION OF JUDICIAL REVIEW
The Idea of Judicial review was essentially first introduced in the United States in the famous Marbury v. Madison Case. To be specific, it is after world war II, The Concept of judicial review gains popularity in the United states. Although the US Constitution doesn’t specifically grant the right to judicial review, Article III of the US Constitution endows the Supreme Court and lower courts established by the Congress with judicial authority. In Marbury Vs Madison, the court declared that the law that contravenes the Constitution is unconstitutional, established the idea in the United States. In India, The Apex court and the high courts have been granted judicial review authority by the Indian Constitution since its inception. Contrary To United Unites States,the Apex court had repeatedly affirmed that the courts have the authority to review constitutional amendments.1 Articles 13, 32, and 226 of the Indian Constitution Incorporate judicial review which was modeled after the United States. According to V.R Krishna Iyer (2006) Judicial review of the activities of the legislature and executive is essential as it upholds the Constitution of India.2 Courts in France had only limited power to review the constitution, later on, the Constitution Council was established, which is the only agency competent to control the discrepancies in the laws with the constitution.
JUDICIAL REVIEW IN UNITED STATES
The Rule of law acts as the foundation of the Constitutionally Democratic written Constitution of The United States. The core of this Federal Constitution is the separation of Powers provided. Judicial review is one of the main procedures used to check the legality of the laws. In the United Stated, the Judiciary has the power to review the acts of the president and the Congress and declare them void if they are not constitutionally valid. Although Judicial review is not explicity covered in The Constitution of the United States, Article III and IV impliedly States about the concept. The Primary goals of the judicial review is to declare that the laws that violating the constitution Invalid and to protect valid laws from being considered unconstitutional. The Interpretation of constitution is essential to Preserve its supremacy, and to prevent other branches of the state to interfere in the legislative authority of the legislative organ.
The Bonham’s Case (1610, UK) has left a significant impact in the history of judicial review in American Judicial Review system.3 In United States vs Tale Todd, The Supreme Court of United states(1794) is one of the earliest decisions that gave rise to judicial review in the United states. In 1803, In Marbury vs Madison4, the supreme court once more exercised its power of judicial power to declare an act of congress unconstitutional. Other significant cases include Hayburn’s Case (1792) and Hylton v. United States (1796). The scope of Judicial review has been expanded since the Marbury Case. In Reed V. Town of Gilbert. It was held that a rigorous scrutiny and precise judicial review is required for all content- based laws.
JUDICIAL REVIEW IN FRANCE
During the years Leading upto french revolution, Judges who were appointed by the king himself would get king offers of judicial proclamations. This system was highly corrupt, sluggish and weak which is why the republicans were not in favor of this system. Due to these conditions the system was highly inconvenient to a strict partitioning of power by rigid division and weak judiciary of the french state that was created after 1789. The judges were not granted the power and authority to scrutinize the laws enacted by the parliament or even create laws through establishing precedents. This was based on the theory of the jean- jacques rousseau who believed that law-giving was the will of the people.
Judicial Review was first attempted through the Establishment of Constitutional Council (the CC) in the 1958 constitution of the fifth Republic. The number of members was nine and they were all elected to have 11 year term. Also, the council could only hear the bills currently under debate by the legislature and could not hear bill that had not been referred to the council to be reviewed on constitutionality. In 2008, major changes were introduced to the french judicial review system which was amended. Article 61 of the French Constitution states that both Acts and Bills should be vetoed to constitutional council before promulgation to ensure that they do not contradict the provisions of the constitution. Article 61 may be cited under the Constitutional Council to review any statutory provisions in terms of their constitutionality. Also, Article 62 provides that a provision in a law as a law that has been held unconstitutional by a clause stated in Article 61, the Constitutional Council must make the same repeal.
The Indian Constitution in Part III, which is supplemented by Article 13, expresses that anyone may draw in the aforementioned article to question the law breaking any of the fundamental rights before the Supreme Court (Article 32) or High Court (Article 226). The lawsuit to declare a law constitution is under article 61 of the French Constitution and may be presented in a separate petition and does not have to be part of a litigation. This Amendment introduced a new procedure, known as a question prioritaire constitutionnelle or simply stated as QPC allowing citizens to present their petitions before the Constitutional Council in case they desire legislative clauses to be contested. The law on which the claim is made must be the one under question and the council should not have reviewed it in the past. In the event that the court ascertains that the QPC; It is the Court of Cassation in case it is Civil and Criminal, and Conseil d’etat in case it is administrative and public law cases. Once this, the corresponding supreme court investigates and forwards the information to the post-investigation constitutional council. The constitutional council will take three months to decide whether the aforementioned law is constitutional or not.
JUDICIAL REVIEW IN INDIA
The Judicial review doctrine is important as a guardian in he anti-denial of any rights granted by the constitution to any citizen. The judicial evaluation is perceived as a compulsory part of the society because it enables them to participate in the political and cognitive process within the parliamentary system of government. The firmness of social equality is established through the use of rule of law in every facet of legislative acts and this principle of rule of law can never be changed even, all the courts must abide by the rule of law. Judicial review refers to the separation of power combined with the rule of law. There are specific stipulations concerning the notion of the Judicial review which apply to the rights granted to the citizens under the Constitution of India both on an individual level and on a collective one. That provision today known as the heart and soul of the constitution reads as follows:
“The State shall not enact any legislation depriving or prejudging the rights granted by this Part and any legislation enacted contrary to this conviction shall, to the degree of the contravention, be invalid.”
The body that has the power to question the legitimacy of the legislative acts made is the supreme court and the Highcourts to ensure the fundamental rights pegged down in the Part III of the constitution are not compromised. The supreme court of india is mandated to enforce the Fundamental rights on the basis of article 32 of the constitution. Article 13 also refers to the laws that infringe the fundamental rights and all of those laws are deemed to be invalid, unreasonable and unconstitutional. Any pre-constitutional laws are unconstitutional because it lacks conformity to the basic rights presented in the constitution. Article 21 of the Constitution states this.
“No human being can be denied his life or personal liberty without process provided by a law.”
The case of Manekha Gandhi as against Union of India ruled that the provisions of equality, non-arbitrariness and reasonability set out in Article 14, 19, and 21 ought to be strictly looked at as one in order to determine governmental restraints on personal freedoms.
Citizens have a right to straightly petition the Supreme Court to enshrine their basic rights as the provisions of the rights to constitutional remedy have been offered in Art. 32 of the Indian Constitution. It grants the Supreme Court the power to enforce the basic rights by writs, i.e. Habeas corpus, Mandamus, Prohibition, Quo Warranto, and Certiorri. According to the Articles II in the Indian Constitution, the High Court has the power to grant writs to enforce part III of the Constitution. First, the Central and state laws that are included in the 9 th schedule of the Constitution, may not be challenged based on the fact that they infringe on the fundamental rights. Due to the notorious case of the IR Coelho Case, it has been declared later that the laws stipulated in the Ninth Schedule could be questioned as well on the grounds of their constitutional relatability. Judicial review has already gained permanency in India Judicial system following the decisions made after 1973 and at this stage, Judicial review is a basic constitutional provision.
SCOPE OF JUDICIAL REVIEW
Evaluation of laws passed by the legislative and checking whether they are constitutional and ensuring they do not conflict with the core values outlined in the constitution. The laws are declared to be void if it is determined to be unconstitutional. In this Kind of review, the constitutional provisions are applied to relevant legislation. This covers the Government policies, Administrative rulings and executive orders. Apart from legislative and judicial actions, Courts can also evaluate the administrative decisions made by the government. In some countries, The courts examine the constitutional amendments as well. Constitutional supremacy is established in virtue of the concept of judicial review. It relies on the separation of powers, since an independent judiciary is required for the evaluation. This independence of the judiciary enables it to make decisions free from any other external influence.
CONCLUSION
In conclusion, the power of Judicial review can be defined as the jurisdiction of the superior courts, i.e., The High Court, The Court of Appeal, and The Supreme Court to review the acts, decisions and omissions of public authorities in order to establishing order to establish whether they have exceeded or abused their powers. 5Courts play an Important role in maintaining justice and democracy. By examining and declaring laws, which violate fundamental rights, unconstitutional, it enables the state to protect the individual rights. All government actions should align with the constitution, and the Indian judiciary is responsible for ensuring this and should prevent the legislation from not doing so. To maintain justice and fairness and to ensure public justice, this evaluation of the laws are very much required. In the United States, the judges have the authority to declare a law unconstitutional and overturn it, indicating a strong judicial review system. The judicial review system is more limited in many European nations, such as France and Germany.6 The legal system in India emphasizes that any law that violates the Constitution of India may be overturned by the system. Judicial review protects the fundamental rights of citizens as well as maintains the primacy of the Constitution. Therefore, the Judiciary serves as a defender of democracy and individual liberties by ensuring that legislation or the executive does not go beyond the powers conferred to it by the constitution.
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Footnotes
1. Gaurav Dahiya, Comparing the Scope of Judicial Review in French and Indian Context, 7 International Journal of Law Management & Humanities 1027 (2024).
2. Sargam Jain, Judicial Review: A Comparative Analysis of India, USA & UK, 1 International Journal of Law Management & Humanities (2018), https://ijlmh.com/judicial-review-a-comparative-analysis-of-india-usa-uk/.
3. Article 3, Section 2, Clause 1: United States v. Yale Todd (1794), IN United States v. Ferreira” press-pubs.uchicago.edu/founders/documents/a3_2_1s37.html. Accessed 17 Sept. 2025.
4. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
5. A Comparative Study Between India and France, 11 Nat’l Univ. L. J. (HeinOnline)
6. V.R. Krishna Iyer, Judicial Activism in India (Universal Law Publishing Co. 2006).