What Judicial Review Is

In one line

Judicial review is the power of a court to examine whether an act of the legislature or the executive is within the authority the Constitution gives it, and to refuse to give effect to it if it is not.

In the wording a student can write in an exam: judicial review is the power of the superior courts to examine the constitutional and legal validity of legislative enactments, executive actions and, in India, constitutional amendments, and to declare them void or to refuse to enforce them where they exceed the authority conferred. It is the mechanism by which the supremacy of the Constitution is enforced against the organs the Constitution itself creates.

Why a supreme constitution implies review

The argument is short and MU has set it as a question in its own right.

The Constitution is supreme. It creates the legislature, the executive and the judiciary, and defines what each may do.

A limited power exercised beyond its limits is void. If Parliament may not make a law abridging a fundamental right, a law that abridges one is not a law at all.

Somebody must decide whether the limit has been exceeded. Leaving it to the body whose power is limited makes the limit meaningless, since it would be judge in its own cause.

The courts are the natural decider, because deciding whether an act conforms to a legal standard is what courts do.

Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, states the third step as law.

Facts. A sick textile undertaking was taken over and nationalised, and the Act was placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 had inserted clauses (4) and (5) into Article 368, declaring that no amendment could be called in question in any court and that there was no limitation on the constituent power. Section 4 had widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

Held. Both were void and beyond the amending power. Clause (5) sought to remove all limitations on the amending power and demolished the basis on which limited government rests. Clause (4) sought to deprive the courts of the power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.

Why it matters here. The reasoning on clause (4) is the argument for judicial review reduced to a sentence: if the power to enforce a limit is removed, the limit ceases to exist.