Judicial Review

In one line

If Parliament or a Government does something the Constitution does not allow, a court can say so and refuse to give the act effect, and in India that power is written into the Constitution rather than invented by the judges.

In the wording a student can write in an exam: judicial review is the power of the superior courts to examine the validity of legislative and executive action against the Constitution, and to declare void what does not conform. Its source in India is textual: article 13 makes a law inconsistent with Part III void, article 32 guarantees the right to move the Supreme Court for the enforcement of Part III, and article 226 empowers every High Court to issue writs for that purpose "and for any other purpose". It is not an implication drawn from a supremacy clause, as in the United States. In Kesavananda Bharati v. State of Kerala Shelat and Grover JJ. described "the judicial review provided expressly in our Constitution by means of Article 226 and 32" as "one of the features upon which hinges the system of checks and balances", and in L. Chandra Kumar v. Union of India seven judges held that this power is "an integral and essential feature of the Constitution, constituting part of its basic structure", so that it can never be ousted by statute.

Why the law has this at all

A written constitution that limits power is a promise, and a promise needs somebody to enforce it. Article 13(2) says that a law taking away a fundamental right shall be void. If no court could say which laws are void, the sentence would be advice.

The alternative was not theoretical. In the United Kingdom there is no such power, because Parliament is sovereign and a statute cannot be unconstitutional. In the United States the Constitution does not confer the power either: it rests on a decision of the Supreme Court in 1803, Marbury v. Madison, whose report has not been read for this book, so it is named without a citation. India chose neither route. The makers put the power in the text, and put it in three places, so that its existence could never turn on an inference.

The provisions

Article 13(1) deals with pre-Constitution law: "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."

Article 13(2) deals with law made after it: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."