Judicial Review Explained: Meaning, Types & Key Cases

Judicial Review: Introduction

Imagine this: A government passes a law that takes away your right to speak freely or practice your religion. What can you do? Who can stop the government from becoming too powerful?

Synopsis

This is where judicial review comes into play.

Judicial review explained simply means that courts have the power to check whether a law made by the government follows the Constitution. If the law goes against the Constitution, the court can declare it invalid. It’s like having a referee in a game. The referee doesn’t play, but they make sure everyone follows the rules.

This idea is one of the most powerful tools in any democracy. It protects the rights of people. It keeps lawmakers and leaders in check. It makes sure no one is above the Constitution.

We’ve seen real-life examples of judicial review changing history. In the United States, the Supreme Court used judicial review for the first time in the famous case of Marbury v. Madison in 1803. In India, the Supreme Court has used judicial review to protect the “basic structure” of the Constitution. These decisions had a big impact on the country’s laws and people’s lives.

But why should you care about judicial review today?

Because it directly affects your rights, your freedoms, and how laws are made. In a world where political powers are rising, judicial review is more important than ever. It makes sure our governments stay within limits.

In this blog, you’ll see judicial review explained most easily. We’ll cover what it means, how it works in India and other countries, and why it matters for you. By the end, you’ll not just know the term, you’ll understand its power.

What is Judicial Review?

Judicial review is the power of the court to examine laws and government actions. If those laws go against the Constitution, the court can cancel them. This is judicial review explained in its most basic form.

It helps to imagine the Constitution as the rulebook. The government must follow it. If any law or action breaks the rules, the court has the final say. The court steps in, reviews it, and decides whether it can stay or must go.

So, what is judicial review in simple terms?

It’s a process where judges make sure the government is following the rules written in the Constitution. Think of it as a filter. Bad laws or illegal government decisions are caught and thrown out.

This system works in many democratic countries. In the United States, it started with the famous case Marbury v. Madison in 1803. That’s when the U.S. Supreme Court said it had the power to review and reject laws.

In India, the Constitution gives courts this power under Articles 13, 32, 226, and 136. The goal is the same; stop the government from going beyond its limits.

Now, remember this: Judicial review explained is not just about stopping bad laws. It’s about protecting your rights. It’s about keeping power balanced. It’s about making sure no one is above the Constitution, not even lawmakers.

Types of Judicial Review

Now that we’ve seen judicial review explained in simple words, let’s look at its types. Not all judicial reviews are the same. Courts use different types based on what they are reviewing.

Let’s learn them one by one.

1. Constitutional Review

This is the most well-known type. In this, the court checks if a law follows the Constitution. If the law goes against the Constitution, the court cancels it. This protects the basic rights of citizens. It also keeps lawmakers in check.

For example, in India, the Supreme Court used judicial review in the Kesavananda Bharati case. It said that Parliament cannot change the “basic structure” of the Constitution. That decision still protects our democracy today.

2. Administrative Review

Here, courts review the actions of public officials or government departments. They check if the action is fair, legal, and reasonable.

Let’s say a government officer denies a person their pension. That person can go to court. The court will review the officer’s decision. If the action is unjust, the court can cancel it.

This type of review keeps the government’s daily actions in line with the law.

3. Pre Enactment and Post-Enactment Review

In pre-enactment review, courts look at a law before it is passed. This is rare but possible in some systems.

In post-enactment review, the court steps in after the law is made and someone challenges it.

India follows post-enactment review. Courts act only after the law is passed and questioned.

Understanding these types helps you see how judicial review works in many ways. So, when we say “judicial review explained,” it includes many tools to protect rights and democracy.

Landmark Judicial Review Cases: India and the World

The best way to understand judicial review is to see it in action. Courts across the world have used it to shape history. Let’s look at some important cases that show how this power works in real life.

1. Marbury v. Madison (1803) – United States

This was the first major case that used judicial review. The U.S. Supreme Court declared a part of a law passed by Congress as unconstitutional. The decision, written by Chief Justice John Marshall, set the tone for the entire country.

It gave the U.S. judiciary the power to strike down laws that do not follow the Constitution. Without this case, courts might not have had this authority at all.

2. Kesavananda Bharati v. State of Kerala (1973) – India

This case changed Indian constitutional law forever. The Supreme Court ruled that Parliament can amend the Constitution—but it cannot destroy its “basic structure.” That means certain core values like democracy, equality, and rule of law must always remain.

The case is still cited today whenever a law is tested in court. It remains the foundation of constitutional protection in India.

3. Minerva Mills v. Union of India (1980) – India

In this case, the court reaffirmed the “basic structure” rule. It struck down parts of the Constitution that gave Parliament unlimited power. The court made it clear that even lawmakers have limits.

4. German Federal Constitutional Court Cases

Germany’s top court has a strong review system. One major case involved banning a political party for being anti-democratic. The court ruled that democracy must protect itself from forces that try to destroy it from within.

5. R (Factortame Ltd) v. Secretary of State – United Kingdom

Here, the UK courts set aside a law that conflicted with European Union

How Judicial Review Works in India

India strongly believes in the rule of law. Courts in India have the power to check if laws follow the Constitution. This is known as judicial review.

The Supreme Court and the High Courts use this power. They make sure that no law or action goes against the Constitution.

Where does this power come from?

The Constitution gives this power through several important articles:

Article 13 says that any law breaking fundamental rights is invalid.
Article 32 lets people go to the Supreme Court if their rights are violated.
Article 226 allows High Courts to help protect rights.
Article 136 lets the Supreme Court review special cases.

These articles give courts the power to stop unfair laws and actions.

How is it used?

In the Kesavananda Bharati case, the court said Parliament can’t change the basic structure of the Constitution. This protects key ideas like democracy and justice.

In the I.R. Coelho case, the court ruled that even laws in the Ninth Schedule can be reviewed. If they harm basic rights, the court can strike them down. Courts also review actions by government officers. If an officer acts unfairly, the court can stop it.

Why it matters

Judicial review keeps the government in check. It protects citizens’ rights. It ensures that new laws are fair and follow the Constitution. In a large country like India, this power is very important. It helps keep justice alive. It keeps the balance between law and power.

You may like this: What is Judicial Activism? A must-know 13-point Essay

Comparative Study: US vs India vs UK vs Germany

Judicial review is not the same in every country. Different countries follow different models. Let’s look at how four major democracies use this power. This will help us understand how India’s system compares with others.

United States

The U.S. was the first country to use judicial review. It began with the Marbury v. Madison case in 1803.

The U.S. Supreme Court can review any law passed by Congress. If the law goes against the Constitution, the court can strike it down. Courts also use three levels of review: rational basis, intermediate, and strict scrutiny.

In the U.S., judicial review is very strong. It can be used even without a direct case or victim.

India

India borrowed the idea of judicial review from the U.S., but with some changes. Only the Supreme Court and High Courts can use this power. They must wait for a case to come to them. Indian courts cannot strike down laws unless they are clearly unconstitutional. They also protect the “basic structure” of the Constitution. This rule is unique to India.

United Kingdom

The UK does not have a written Constitution like India or the U.S.. So its system is different. Courts in the UK cannot strike down laws made by Parliament. However, they can review the actions of government officials. They also protect human rights under the Human Rights Act, 1998.

Germany

Germany has a special Constitutional Court. This court only hears constitutional matters. It can review laws, protect rights, and even ban political parties that threaten democracy. Germany’s court is one of the strongest in Europe. It is quick, active, and highly respected.

Summary Table

Country	Can Strike Down Laws?	Type of Constitution	Special Feature
USA	Yes	Written	First to use judicial review
India	Yes	Written	Basic Structure Doctrine
UK	No	Unwritten	Human Rights Act protection
Germany	Yes	Written	Special Constitutional Court

Every country uses judicial review in its own way. But the goal is the same, to protect rights and stop abuse of power.

Judicial Review vs Judicial Activism vs Judicial Restraint

These three terms often confuse people. They sound similar but mean different things. Let’s break them down simply.

Judicial Review

As you’ve seen, judicial review is the power of courts to check laws. If a law goes against the Constitution, courts can cancel it. It keeps the government within its limits.

Judicial review is a tool. It is neutral. It can be used carefully or boldly. That’s where activism and restraint come in.

Judicial Activism

Judicial activism happens when courts take an active role in shaping policy. Judges go beyond just checking laws. They may make broad decisions to protect public interest. This can be helpful. It gives voice to people who may not be heard. In India, courts have used activism to protect the environment, stop corruption, and defend rights.

A good example is the Vishaka case. The Supreme Court made rules to protect women at work, even before Parliament passed a law. But too much activism can be risky. Courts may start doing the job of lawmakers. This can disturb the balance of power.

Judicial Restraint

This is the opposite of activism. Here, judges avoid stepping into policy matters. They follow the law strictly and leave law-making to elected leaders. Courts using restraint act slowly. They avoid bold decisions. This keeps power in the hands of the Parliament and government. Some believe restraint protects democracy. Others say it can delay justice when action is needed fast.

Finding the Balance

There is no one right way. Sometimes, courts must act boldly. Other times, they must step back. Judicial review is the base. Activism and restraint are the ways it is used. In the next section, we’ll look at how this power has changed lives and protected people.

Real World Impact: Why Judicial Review Matters

Judicial review is not just a legal term. It has real effects on people’s lives. It protects rights. It stops unfair laws. It keeps governments in check.

Let’s discuss how.

Protecting Fundamental Rights

Courts use judicial review to protect your basic rights. If the government passes a law that limits your freedom of speech or religion, the court can strike it down.

For example, in India, courts have protected the right to education, the right to privacy, and the right to equality. These are not just words. They shape how people live every day.

Correcting Government Overreach

Sometimes, the government or its officers misuse power. Judicial review gives people a way to fight back.

In the Maneka Gandhi case, the government stopped her from traveling. The court said this action was against her right to personal liberty. The decision changed how personal freedoms are protected in India.

Safeguarding Democracy

Judicial review helps balance power. It ensures that lawmakers and ministers stay within their limits.

In the Kesavananda Bharati case, the court said Parliament can’t change the “basic structure” of the Constitution. That ruling saved Indian democracy from being weakened.

Giving a Voice to the Voiceless

Courts often take up issues that affect common people. Through judicial review, poor or marginalized groups can challenge unfair rules.

It creates space for justice when other systems fail. Judicial review is more than a legal check. It is a shield for the people. It protects fairness, freedom, and the rule of law.

Challenges and Criticism

Judicial review is powerful. But it also faces many challenges. Some people even question how it is used. Let’s look at the main concerns.

1. Unelected Judges Making Big Decisions

Judges are not elected by the people. Yet, through judicial review, they can cancel laws made by elected leaders.

This creates a debate. Some say it gives too much power to the judiciary. Others say it is needed to protect the Constitution. This issue is called the “counter majoritarian problem.” It means judges can go against the will of the majority. That may seem unfair in a democracy.

2. Judicial Overreach

Sometimes, courts go beyond just checking laws. They start making rules or policies. This is called judicial overreach.

It can blur the line between the judiciary and the legislature. Critics say judges should not do the job of lawmakers.

For example, when courts lay down detailed rules on school fees or pollution control, people ask, Shouldn’t this be done by the government?

3. Delay in Justice

Judicial review takes time. Courts are often overburdened. Cases can take years to be heard. This delay can affect people who urgently need relief.

4. Inconsistent Use

Courts sometimes avoid using judicial review in sensitive cases. This creates confusion. If the power is used in some cases but ignored in others, it can seem unfair.

5. Political Pressure

In some countries, courts face political pressure. This can affect their independence. If judges fear backlash, they may hesitate to review powerful laws.

Striking the Right Balance

Despite these issues, most agree that judicial review is needed. The key is balance. Courts must be bold, but careful. Active, but fair. Strong, yet limited.

Conclusion: The Future of Judicial Review

Judicial review is a powerful tool. It protects the Constitution. It defends people’s rights. It keeps the government within limits.

We’ve seen how it works in India, the U.S., and other countries. We’ve learned about its types, standards, and real-life cases. We’ve also looked at its challenges. But one thing is clear, it matters.

Without judicial review, bad laws could go unchecked. Powerful leaders could act without limits. People’s freedoms could be at risk. That’s why courts must continue to use this power with care. They must act when needed but also respect the line between law and politics.

In the future, judicial review will only grow more important. As technology, politics, and society change, new questions will arise. Courts must be ready to answer them, fairly and wisely. For students, citizens, and anyone who cares about justice, understanding judicial review is essential. It’s not just a legal concept. It’s a shield for democracy.

Let’s value it. Let’s protect it.

Frequently Asked Questions (FAQ) – Judicial Review Explained

1. What is judicial review in simple words?

Judicial review is the power of courts to check if laws or government actions follow the Constitution. If something goes against the Constitution, the court can cancel it.

2. Why is judicial review important in a democracy?

It protects people’s rights and freedoms. It keeps the government within legal limits. It stops unfair or unconstitutional laws from being used.

3. Which article in the Indian Constitution talks about judicial review?

Article 13 gives this power. Articles 32, 226, and 136 also support it by allowing people to challenge laws and actions in court.

4. What is the difference between judicial review and judicial activism?

Judicial review is checking if a law follows the Constitution. Judicial activism is when courts go beyond this role and make bold decisions to fix social problems.

5. Can courts cancel a law passed by Parliament?

Yes. If a law breaks the rules of the Constitution or harms basic rights, courts can declare it invalid using judicial review.

6. Is judicial review used in other countries?

Yes. Countries like the United States, Germany, and India use judicial review. Each country has its own rules, but the goal is the same—to protect the Constitution.

7. What is the “basic structure” doctrine in India?

It means some parts of the Constitution, like democracy and justice, cannot be changed by Parliament. Courts use this rule to stop harmful changes.

8. Who can ask for judicial review in India?

Any person whose rights are affected can go to the High Court or Supreme Court. Courts will check the case and decide if the law or action is valid.

9. What is an example of judicial review in India?

In the Kesavananda Bharati case, the court said Parliament cannot change the basic structure of the Constitution. This was a major use of judicial review.

10. Can judicial review be misused?

Some say yes, especially when courts overstep and make policy decisions. But when used carefully, it is a vital check on government power.

Bibliography / References

The Constitution of India – Bare Act, Government of India.
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), U.S. Supreme Court.
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
Jain, M. P., Indian Constitutional Law, LexisNexis, 8th Edition, 2023.
Basu, D. D., Commentary on the Constitution of India, LexisNexis, 2022.
Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, 2001.
Ministry of Law and Justice, Government of India. https://legislative.gov.in/
Supreme Court of India: Landmark Judgments Archive. https://main.sci.gov.in
Law Commission of India Reports – https://lawcommissionofindia.nic.in/
“Judicial Review – Comparative Perspectives,” Harvard Law Review, Vol. 119, 2005.
BBC Bitesize: UK Judiciary and Parliamentary Sovereignty – https://www.bbc.co.uk/bitesize

Judicial Review Explained: Meaning, Importance, Examples, and Global Perspective