Abstract

One of the most significant questions for originalists-perhaps the most significant question-is: What was the original understanding of judicial review? Scholars and jurists have sharply disagreed on the answer. Opinions range from the claim that judicial review was not part of the original JUDICIAL REVIEW BEFORE MARBURY 457 understanding at all1 to the contention that the original conception of judicial review was so expansive that courts had the power to invalidate statutes on broad natural law grounds. 2 The Supreme Court has claimed originalist sanction for the view that it is "the ultimate expositor of the constitutional text, and in the past decade has struck down a string of congressional statutes on originalist grounds. The power of judiciary to review and determine the validity of a law or an order may be described as the powers of Judicial Review’.It means that the constitution is the supreme law of the land and any law inconsistent therewith is void through judicial review. It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution. Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the government. The Supreme Court has been vested with the power of judicial review. It means that the Supreme Court may review its own Judgement order. Judicial review can be defined as the competence of a court of law to declare the constitutionality or otherwise of a legislative enactment.

Being the guardian of the Fundamental Rights and arbiter of the constitutional conflicts between the Union and the States with respect to the division of powers between them, the Supreme Court enjoys the competence to exercise the power of reviewing legislative enactments both of Parliament and the State’s legislatures.

The power of the court to declare legislative enactments invalid is expressively provided by the Constitution under Article 13, which declares that every law in force, or every future law inconsistent with or in derogation of the Fundamental Rights, shall be void. Other Articles of the Constitution (131-136) have also expressively vested in the Supreme Court the power of reviewing legislative enactments of the Union and the States.

The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the Constitution (1976), in several ways. But some of these changes have been repealed by the 43rd Amendment Act, 1977. But there are several other provisions which were introduced by the 42nd Amendment Act 1976 not repealed so far.

In many cases the judicial reviews played a pivotal role in restoring the fundamental rights of the citizens and safeguarded the constitution but it cannot be undermined that the judicial review has become an outreach in man of the cases. The acknowledgement of this difference between “judicial activism” and “judicial overreach” is vital for the smooth functioning of a constitutional democracy with the separation of powers as its central characteristic and supremacy of the constitution as the foundation of its edifice. This paper helps to understand the importance of judicial review and also to highlight the judicial activism into outreach , the main problem of the judicial review is it fails to acknowledge the separation of power which is the very essence of the constitution , and more so the judicial actions are not accountable as compared to that of the legislature and executive. The author aims to understand the intricacies of the concept of judicial review.

Introduction

The proviso of judicial review has been implemented in the constitution of India from the United States Constitution. Judicial review is the doctrine under which lawmaking and administrative proceedings are matter to review by the judiciary. The notion of judicial review is espoused in the constitution of India from judicial review in the United States. Judicial review is dealt under Article

13 of the Constitution of India. Judicial review cites that the Constitution of India is the superlative authority of the state and the entire laws are under its preeminence. The Apex Court of India has been conferred with the authority of judicial review. So with this power or authority of judicial review, it means that the Supreme Court of India can review its own verdict or decision. Judicial review can be defined as the proficiency of a court of law to affirm the authorization or else of a legislative enactment.  The Supreme Court of India as the protector or custodian of the Fundamental Rights and intermediary or arbitrator of the legitimate or constitutional difference among the Centre and the States with respect to the separation of powers between them under the Union, State and Concurrent list, the Apex Court have the capacity to put into effect the power of reviewing legislative enactments equally of Parliament of India and the State’s legislatures.The authority of the court of law to pronounce legislative endorsement void is meaningfully specified by the under Article 13 of the Constitution of India, which affirm that each and every law in power, or any prospect law conflicting with or in deprecation of the Fundamental Rights, shall be null and void. Further, other Articles of the Constitution of India, e.g. Article 131-136 have also expressively vested in the Supreme Court, the power of reviewing legislative enactments of the Centre and the States.The jurisdiction of the Apex Court was tyruncated by the 42nd Amendment of the Constitution in the year 1976, which is also famous as ‘Mini Constitution’. However several modifications have been made in the Constitution by 43rd Amendment and some of the provisions have been repealed by the 43rd Amendment Act, 1977. Although, there are few additional provisions which were commenced by the 42nd Amendment Act, 1976 but not repealed till now.