Judicial Review and Judicial Over-Reach


Author: Gayatri Sahu


The doctrine of judicial review originated & developed in the U.S.A. It came from the case Marbury Vs Madison (1803). Judicial review is a basic feature of the constitution (part of the basic structure). Constitution has conferred the power to both high court & supreme court. It is mentioned in article 13 of the constitution, which states that all laws that are inconsistent with or in Derogation of any of the Fundamental rights shall be void.

We all know that legislature has the power to make laws but we should also notice the fact that this power is not absolute so here something where judicial review or judiciary steps in.

Judicial review is the process by which the judiciary review/examine the validity & constitutionality of laws ( legislative + executive ) orders passed by the legislature (center + state government ). If on examination laws are found to be violative of the constitution, they can be declared illegal, unconstitutional & invalid by the judiciary and even the Government cannot enforce them. So, why does this happens, so why does judiciary steps in  between and it has to you know repudiate or it has to we can say validate the laws which are passed by legislature because as we all know that judiciary is some organ which basically acts as the sentinel on qui – vive this is the famous phrase. Sentinal on qui – vive that means judiciary is the basically the protector & guarantor of the provisions of the constitution which are given to or enshrined on us, that is citizens. This power comes from the constitution itself the article 13 which talks about laws, so this power is basically evoked to protect & to enforce the fundamental rights which are guaranteed in part III of the constitution, apart from this. Article 13 prohibits the parliament & state legislature from making any of the laws that somehow or somewhere is other, takes away  or abridges the fundamental right which are given to citizens, also here provisions of article 13 may also say that any law which is in derogation with fundamental rights or any laws which are inconsistent with the fundamental rights are ab initio and they are void.

Here what does law includes – the laws were – which are talked about in article 13 would include ordinance, order, bye-law, regulation, notification & custom. So, what may be the examples of judicial review – the examples be, Striking down of section 66A of IT Act as it was against the fundamental right guaranteed by the constitution.

Judicial Review is important to uphold the principle of the supremacy of the constitution, to protect the fundamental rights of citizens as well as animals as per new law, Powers divided between  central and state government to maintain balance of powers so that it doesn’t cross its limits, Interpreter of the constitution is supreme court and judicial review is a part of that, that is why the existence of judicial review is important. If the power of judicial review was absolutely taken away, the constitution would cease to be what it was.

In the Keshvananda Bharati Case, the Judicial review was ultimately held to be the basic structure of the Indian Constitution. The same view was reiterated in S.P. Sampath Kumar v Union of India. Justice PN Bhagwati, relying on Minerva Mills Ltd (1980) 3 SCC 625 declared that it was well settled that Judicial review forms the basic structure of our Indian Constitution.

The Kihoto Hollohanv Zachillur 1992 Supp (2) SCC 651, 715, para 120 held invalid para 7 of 10th schedule regarding non-review of the decision of speaker/ Chairman on the question of disqualification of judicial review of MLA and MP’s.

In L.Chandra Kumar v UOI (1997) 3 SCC 261, the Supreme Court held that power of judicial review under Article 32 and 226 is an integral and essential feature of the basic structure of our Constitution.

The judicial review thus formed a specific and special tool in the hands of the judges whereby unlawful actions of the legislative and executive could be quashed.

Rule of law has been very well explained by Lord Hoffman- “There is however another relevant principle that must exist in a democratic society. That is the rule of law…..The principles of judicial review give effect to the rule of law. They ensure that the administrative decisions should be taken rationally, in accordance with a fair procedure and within powers conferred by the parliament.”

In the USA, Justice Marshall declared-“the legislature has no authority to make laws repugnant to Constitution and in the case of a constitutional violation, the court has absolute and inherent rights to invent the system of judicial review which was already in process of evolution.

Again, in Mc Culloch v Maryland, Justice Marshall expanded the powers of the Federal government by Doctrine of Implied powers and declared the statute of Maryland as unconstitutional.

The extent of judicial review occupies a vital place deeply rooted in the Indian Constitution and is enshrined in Articles 13, 32, 131-136, 142, 143, 226 and 246.

The US constitution does not expressly mention the judicial review but in 1787, powers were given to the judges to render any ultra vires provisions to constitution unconstitutional; it was acted in case of Hilton v Virginia (1796) and later it was exercised in Marbury v Madison (1803).

Art VI of section 2 “This Constitution and the law of US which shall be made in pursuance thereof and all treaties or which shall be made under the authority of US shall be supreme law of land and judges in every State shall be bound thereby, anything in the Constitution or law of any state to the contrary notwithstanding”.

The Vth Amendment further strengthened the judicial review under the umbrella of due process of law that means life, liberty or property cannot be taken or deprived without due process of law and cannot be subjected to unfair, arbitrary means of the legislature, executive and judiciary.

In Canada, the Judicial review provides that a court has the power to set aside a decision for an error of law, absence of evidence and unauthorized exercise of power.[1]


When judicial activism crosses its limits or exceeds its authority and it becomes judicial adventurism so it is then known as judicial overreach.

In what cases does the judiciary exceeds its Authority, whenever it has to interpret the law or whenever it is interfering with proper functioning of any of the other organ of our government that may be interfering with the legislative or with the Executive organ of our government ,so apart from this we might also know this concept also has no origin of its power  and this is basically undesirable in democracy because it basically destroys the very spirit of separation of powers which says that powers are to be separated and the different organ of the governance of the country have to do their own jobs by not interfering as much as possible in the job of any other organ apart from this.

The thin line between judicial activism & judicial overreach that all depends on the perspective of the individual and the perspective of the judge also but apart from this we can take an example in general – there was a very famous case in which the Allahabad HC, basically ordered that bureaucratic have to send their wards to government school only apart from this we can say apparent judicial overreach in the case when we see, that judiciary misuses. Its power to punish for the contempt of the court. So, basically, judicial overreach emerges when judicial activism crosses its limits when judiciary oversteps the powers given to it, when it interferes with the proper functioning of the legislative/executive organs of the government and when it destroys the separation of powers concept.

Article 50 of our Constitution clearly states that the judiciary and the executive shall not encroach upon each other’s domain. The breach by the judiciary on this front is known as Judicial Overreach:

Instances of Judicial Overreach and their corresponding impact on Executive:

1. Liquor Ban on National Highways and State Highways by SC/Ban on liquor near-religious place by Uttakhand HCs:

The Executive shall see a loss in revenue, unemployment, face protest from various stakeholders. In turn, it may see fewer road accidents. The Supreme Court ruling about road safety has banned the sale of liquor at retail outlets, as also in hotels, restaurants, and bars, that are within 500m of any national or state highway

2. Aadhar: Should be voluntary for welfare schemes and can be mandatory for non-welfare schemes:

The Executive may be unable to weed out inefficiency in welfare schemes which would have been possible with mandatory Aadhar. However, this will ensure that it doesn’t face the glitches in delivery because of the identification issue.

For non-welfare schemes, the executive may be able to bring in greater digitization and transparency.

3. Banning the sale of BS-III compliant vehicles: 

The executive may be able to see lower pollution and a march towards the stated goals of BS-VI compliance by 2020. Temporary it may also see a surge in exports of BS-III vehicles but lower tax revenue on account of lower domestic sales of GDP to hit on the Indian auto-sector and boost for GDP due to higher foreign investment in the auto sector might be felt.

4). The order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to the government school.

5).  Levying congestion charges in peak hours at airports

6).  Allotment of a particular bungalow to a judge

7).  Chandigarh High Court is deciding what tolls should be charged at a toll plaza in Gurgaon. 

8).  Gujarat High Court has ordered that all new vehicles registered in the state should run on compressed natural gas.

While the judiciary is the protector of the right of a citizen, doing it so by encroaching the right of the executive is not the correct way. It should aim at curtailing judicial overreach through self-restraint.

[1] Anand Nandan, Parliamentary Supremacy and Judicial Review: Indian Perspective (September 15, 2018, 3:14 PM IST ), https://timesofindia.indiatimes.com/blogs/les-avis/parliamentary-supermacy-and-judicial-review-indian-perspective/