Unveiling Judicial Review: Origins & Impact on Administrative and Legislative Actions

The expression ‘judicial review’ can be used both in narrow sense as well as in wide sense. In narrow sense Judicial Review is essentially collateral. It does not go into the merits of the impugned decision but on the contrary examines only the constitutionality or the basic legality of it. The attack is collateral. Here ‘The contention is not that on merits the impugned decision was wrong. On the other hand, the contention is that the decision was given either without jurisdiction or that it was contrary to the constitution or that it was contrary to the fundamental provision of a statute under which the administrative authority was acting. In its wider sense, Judicial Review would include even Appeals on the merits of the decision which may be of administrative authority or even civil court. All the questions of Facts of law that is the merits of the whole case would be open to review. Since this is reconsideration by a higher court which have been already considered and decided by a court or tribunal which, in hierarchy of judicial authority is directly subordinate to the reviewing court, the earmark of such a wide review, is that it is usually vertical review. This would usually mean an Appeal from a lower to a higher court or tribunal on all questions of fact and law or on the question of law or on substantial question of law . The review in the wider sense may be of dispute between private parties or between private parties and the state or a public authority and therefore is mostly a question of private law. But the narrower view is essentially a question of public law. It is directed against administrative or legislative action as being without jurisdiction or unconstitutional. For all practical purposes judicial review has acquired narrow usage to signify ‘The power of the courts to pass upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce such as they find to be unconstitutional and hence void.