Judicial Review

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The controversy of judicial review which at extreme points, is called judicial activism, is a concept new to India. Judicial review can be defined as the judiciary, in the exercise of its own independence, checking and cross checking the working of the other organs of the government, while trying to uphold the ideal of ‘the rule of law’. Judicial activism more reformist in character is often confused with judicial review. According to Black’s Law Dictionary, judicial activism is “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional
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The first sporadic effort to incorporate the power of judicial review was in Germany in 1848. However, it took till 1920 when the first serious attempt was made in Australia to make judicial review a reality. The European Union, in present times, also provides for judicial review in the European Court of Justice. Many countries like Germany also have strong Supreme Courts which reflect public opinion and can review laws.5 Most civilian law countries, however, do not have their judiciaries interfering with the legislative process and believe in the separation of powers but not in the checking of unlawful use of power. It is mainly in common law countries, where courts are obligated to judge according to ‘justice, equity and good conscience’, where the courts took it upon themselves to convert this maxim into reality.

Constitutionality India is a constitutional democracy which believes in the rule of law. The Constitution of India is the basic framework which must be followed to prevent a collapse of law and order. The judiciary is often called ‘the guardian of the Constitution’. This gives the judiciary the power to interpret the Constitution in order to hold up its basic ideals. This power of interpretation is at the
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