Abstract

It is often asserted that a formal constitution does not necessitate judicial review over primary legislation. Rather, a country may conceive of other mechanisms to protect the constitution from intrusion by the regular political bodies. The question arises whether the reverse holds true. Can we envision a country that exercises judicial review over primary legislation yet lacks a formal constitution? Surprisingly, The concept of the Judicial review was first noticed in the case of Marbury v. Madison in 1803 by Chief Justice Marshall. In India, the idea was checked not by a specific case but rather as a progression of constitutional amendments which are very rigid in nature. This paper focuses on the Indian constitutional experience during its founding period and also its development along the chronological timeline. It further explains the unique revolutionary role performed by the Supreme Court of India in order to provide decisions in cases where legislations and amendments passed by the Parliament are challenged. Using India as a case study within a comparative constitutional framework, the article offers some important segments: First, it explains how judicial review was first introduced and from where the idea was originally incorporated. Second, a complete view over judicial review is being provided along with case laws to understand the concept more precisely including the concerned constitutional provisions. Thirdly, the grounds have been highlighted where judicial review is challenging the sovereignty of the Parliament in India. And last but not the least, a discussion has been drawn regarding the legitimate use of this special authority of the Supreme Court so that it remains a constitutional tool and not a machinery to serve the personal agenda of the Judiciary.

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