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 nations 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
States 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 States 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.