INTRODUCTION
The Presidential System has a singular executive structure, unlike the parliamentary system. The President is both the Head of the State and Head of the Government, elected directly by the people or via an electoral college. A key feature of this form of government is that the executive is not responsible to the Legislature. The President has a fixed tenure and cannot be removed via a no-confidence vote, except in cases of illegal actions through impeachment process. This is followed in the United States, Brazil and Indonesia. All the three branches of government- the Executive, Parliament, and Judiciary are interdependent and interrelated, though they function independently. It is imperative that, to ensure democracy is sustained, no branch should use its powers arbitrarily, and the system of checks and balance must be followed. Judicial Review[1]one such mechanism can be defined as the power of the courts to critically examine the actions of the Legislative, executive, and Administrative arms of the government, ensure that they are not arbitrary, and determine whether such actions are in accordance with the Constitution. Any action inconsistent with the Constitution is declared to be null and void.
It is gaining increasing attention over the past few years and ensures that all legislative and administrative actions comply with constitutional boundaries. Acting as an ultimate check against Government overreach, it preserves constitutional supremacy and protects citizens’ fundamental rights.
THEORETICAL FOUNDATIONS OF JUDICIAL REVIEW
The theoretical foundations of Judicial review are formulated mainly on the basis of three doctrines. These are the doctrines of Constitutional Supremacy, Separation of Powers and the Rule of Law[2]. These are applied together to cases or situations where constitutional provision is in question, and any act of the State or the Executive that is in conflict with the Constitution, is declared to be null and invalid or void. These doctrines justify judicial review to be ultimate.
- Constitutional Supremacy: According to the doctrine of constitutional supremacy, the ultimate ruler of the State is the constitution. It is the supreme, final, and fundamental law of the land which cannot be overridden under any circumstance, unless emergency situation arises. However, solely emergency situations, the Constitution cannot be completely overridden; only certain rights may be suspended for some time when the nation’s security is in question.
All other branches of government derive their power from the constitution, and thus are its subordinates.
- Separation of Powers: The three branches of the government- the Executive, the Legislature, and the Judiciary- in general, function independently of each other, yet are interdependent via the system of checks and balances. This theory, was popularized by Montesquieu. Judicial review ensures that Legislature and Executive do not overstep their powers, underutilize them, or use it for illegal or arbitrary purposes.
As much as separation of powers is important to ensure smooth work and administrative flow and lesser burden on one branch, so is ensuring no branch oversteps its authority.
- Rule of Law: This principle is the most basic and fundamental of all principles, states that no individual, institution, or entity- including the government- is above the law and that they are accountable and answerable to the laws of the nation.
The Judiciary acts as the ultimate safeguard to ensure that administrative and legislative actions are exercised rationally, and fairly.
CASE STUDY: USA
The United States of America follows a presidential form of Government. Its executive structure is a centralized federal hierarchy established by Article II of the Constitution, headed by the president.
Article III of the Constitution provides for the judicial system of the U.S. It clearly defines the powers and duties of the courts, forms the basis of judicial review, and constitutional checks on executive power. Section I provides for the establishment of federal courts, including the Supreme Court and other lower courts. Section II provides for the jurisdiction of these federal courts. The Supreme Court has original jurisdiction and appellate jurisdiction. Section III provides for the commission of treason against the United States. The U.S. Constitution does not explicitly outline the power of judicial review, rather, it is an implied power derived from Article III and Article VI (Supremacy Clause) of the Constitution. The latter establishes the supreme law of the land, which means even in conflicting circumstances, the Constitutional laws and provisions must be upheld, and cannot be violated. Any executive action not consistent with the Constitution is null and void. The article does not explicitly grant courts the power of judicial review, it provides the constitutional basis upon which that power rests.
The doctrine of judicial review was formally established by the Supreme Court in Marbury v. Madison (1803), a landmark decision that fundamentally shaped American constitutional law. Chief Justice John Marshall[3] stated that since it is the Constitution which is supreme, any law contrary to it must be invalid. The federal courts are responsible for interpretation and application of laws, it is their responsibility to refuse to enforce any statutes or proposals that are violative of the Constitution. This case systematically shaped the American system of checks and balances. It emphasized the judiciary’s position as a co-equal branch of government, with independent yet interrelated powers, and the Supreme Court as the ultimate authority as the Constitution’s interpreter. While Marbury established the theoretical basis of judicial review, subsequent decisions demonstrated its practical application in restraining arbitrary executive authority. An important example is the case of Youngstown Sheet & Tube Co. v. Sawyer (1952), decided during the Korean War.[4].
The Supreme Court invalidated the seizure of steel mills throughout the country when a nationwide steelworkers’ strike erupted, holding that the President lacked constitutional or statutory authority to take possession of private property. It prevented executive overreach and abuse of power and established limits on presidential power.
Two key pillars of judicial review were established as follows: –
- The “Must Stem” doctrine: The court reaffirmed that presidential power must stem directly from the U.S. Constitution[5] and cannot be inferred solely from vague claims of emergency situation authority.
- The faithfully executed law: The judges held that the President’s duty to faithfully execute the laws does not imply that he can act as a lawmaker himself, and that the Constitution is supreme.
- Several judicial decisions, as mentioned above and others, have repeatedly demonstrated the central role played by judicial review in preserving and protecting constitutional safeguards on executive authority in the United States. The Supreme Court has consistently asserted its power to invalidate executive actions that have attempted to override constitutional laws and threatened the principle of limited government. However, the American model of judicial review is not free from criticism. Every coin has two sides; just like the American system of judicial review, it has its own strengths and weaknesses.
STRENGTHS:
- Checks on executive and legislative power: It prevents abuse of power by ensuring neither the President nor the Legislature can bypass constitutional limits and ensures strict adherence to them[6].
- Protection of Individual rights: Courts act as the ultimate neutral defenders of the fundamental rights of citizens against the tyranny of the majority or oppressive governmental policies[7].
- Upholding the Constitution: It maintains constitutional supremacy, ensuring that the foundational and fundamental rules of the nation are respected by all branches of government.
WEAKNESSES:
- Excessive judicial power: Critics argue that judicial review may result in excessive judicial power, allowing unelected judges to invalidate decisions made by democratically elected officials; thus, it becomes important to balance judicial authority and democratic governance.
- Judicial activism: Judges may overstep their authority and begin making policies or dictating state administration, exceeding their authority to interfere in the legislature or the executive’s decisions.[8]
- Personal bias: Judicial decisions may be wrongly influenced by personal or political opinions of the Judges, making constitutional interpretation subjective rather than objective. One solution, thus, does not fit all. Different cases mean different facts, and thus different solutions.
CONCLUSION
Despite these criticisms, judicial review remains an essential component of the American constitutional system. The judiciary has always showcased its authority to restrain excessive executive power and preserve constitutional supremacy. The American experience illustrates how judicial review can function as a powerful safeguard against abuse of executive power while simultaneously reinforcing constitutional supremacy, separation of powers, and the rule of law.
Author(s) Name: Riddhima Bhattacharya & Pratha Paras (Symbiosis Law School, Pune & Symbiosis Law School, Pune)
References:
[1] Encyclopaedia Britannica, ‘Judicial Review’ (Britannica, 6 February 2026) <https://www.britannica.com/topic/judicial-review> accessed 24 June 2026.
[2] Lloyd Law College, ‘Judicial Review in India: Meaning, Types and Importance’ <https://www.lloydlawcollege.edu.in/blog/judicial-review-india.html> accessed 24 June 2026.
[3] Marbury v Madison 5 US (1 Cranch) 137 (1803).
[4] Youngstown Sheet & Tube Co v Sawyer, 343 US 579 (1952).
[5] Bill of Rights Institute, ‘Youngstown Sheet and Tube Company v Sawyer (1952)’ <https://billofrightsinstitute.org/e-lessons/youngstown-sheet-and-tube-company-v-sawyer-1952/ >accessed 24 June 2026.
[6] Drishti IAS, ‘Judicial Review’ (6 January 2021) <https://www.drishtiias.com/daily-updates/daily-news-analysis/judicial-review-1> accessed 24 June 2026.
[7] National Judicial Academy, Judicial Review (National Judicial Academy, 2018–19) <https://nja.gov.in/Concluded_Programmes/2018-19/P-1110_PPTs/8.Judicial%20Review.pdf> accessed 24 June 2026.
[8] Rajkumar Singh, ‘Judicial Review and Judicial Activism in India: Trends and Emerging Perspectives’ (2020) 11(3) Research Journal of Humanities and Social Sciences <https://rjhssonline.com/HTML_Papers/Research%20Journal%20of%20Humanities%20and%20Social%20Sciences__PID__2020-11-3-7.html> accessed 24 June 2026.
