Judicial Review in India And USA : A Comparative Study

One of the most important features of the judiciary is the power of judicial review. Judicial review
is the power of the Supreme Court and the High Courts to examine the constitutionality of the Acts
of the Parliament and the state legislatures and executive orders both of the centre and state
governments. If it is found that any of its provisions are in violation of the provisions of the
constitution, they can be declared unconstitutional or ultra-vires of the constitution and a law
declared by the Supreme Court as unconstitutional cannot be enforced by the government.

According to Redform, “Judicial review is the power of a court to enquire whether a law, executive
order or other official action conflicts with written constitution and , if the court concludes that it
does, declare it unconstitutional and void”. One can find the basis for judicial review in the writings
of Alexander Hamilton, one of the framers of the American constitution in 1789, in the ‘Federalist’.
He wrote, “The interpretation of the laws is the proper and peculiar province of the courts. A
constitution is in fact and must be regarded by the judges as a fundamental law. It therefore belongs
to them to ascertain its meaning and meaning of an act passed by the legislature.” He further said
that if there was any conflict between the two, that is the constitution and the law, the judges should
prefer the constitution as it is supreme. This became the basis of judicial review.

The judiciary by using this power keeps the legislative and the executive organs within the purview
of the constitution. Judicial review is an example of the functioning of separation of powers in a
modern governmental system (where the judiciary is one of three branches of government). This
principle is interpreted differently in different jurisdictions, which also have differing views on the
different hierarchy of governmental norms. As a result, the procedure and scope of judicial review
differs from country to country and state to state.

Judicial review could be understood in terms of two different legal systems – The Civil Law System
and the Common Law System OR by theories on democracy – the Legislative Supremacy and the
Separation of Powers theory. For instance in United Kingdom which is a common law country,
Parliamentary Supremacy has been established and thus Judicial Review of Legislative Acts is not
permitted. On the other hand in the United States of America [the “US’], Constitutional Supremacy
prevails. Similarly in India the Doctrine of Separation of Powers has been held as the Basic
Structure of Constitution and Constitutional Supremacy established, permits the review of the
legislative acts as well.
Origin
The doctrine of judicial review is one of the invaluable contributions of the U.S.A. to the political
theory. Its origin has been the result of a judicial decision and its continuance has been possible due
to some conventions. The concept of judicial review was developed by Chief Justice Marshall of the
American Supreme Court in the famous Marbury v. Madison case (1803). In this case Chief Justice
Marshall laid down that the judiciary has the power to examine the laws made by the legislature. It
was also declared that if any such law is found to be in violation of the constitution, then such a law
would be declared by the court as ultra-vires of the constitution. While doing so the Supreme Court
referred to Article VI, Section 2 of the Constitution.

Objectives
Judicial review is important because laws passed need to be checked to make sure they are
constitutional. Judicial review is important because it allows the higher courts to review the
outcomes of the lower courts. It helps to check on the other branches of government. The main
importance of judicial review is to protect individual rights, to balance government powers and to
create and maintain equality to every person. The system of civil liberties that we know of today
would be very different without judicial review.

Judicial Review as formulated by Chief Justice Marshall of the American Supreme Court had a no.
of objectives:
i. To uphold the principle of the supremacy of the Constitution.
ii. To maintain federal equilibrium i.e. balance between the centre and the states.
iii. To protect the fundamental rights of the citizens.

Judicial Review in U.S.A

The US Constitution is the supreme law of the land. The Supreme Court has the power to interpret
it and preserve its supremacy by preventing its violations by the Congress and the President. This
provision has been the basis of the judicial review power of the Supreme Court. “Judicial Review "
is the principle and authority which give the Supreme Court of USA the power to reject or abrogate
any law which is made by Congress or states. According to this power Supreme Court of USA
reject or abrogate any law which does not suit or conform to the constitution of USA or apposite the
constitution of USA or violate the Constitution It has come to be recognised as the most distinctive
attribute and function of the Supreme Court. As such, it can be said Judicial Review is the power of
the Supreme Court to determine the constitutional validity of federal and state laws whenever these
are challenged before it in the process of litigation. It is the power to reject such laws as are held to
be it ultra vires.

There is no clear mention of the Judicial Review power of the court in any part of the US
Constitution. Its origin has been the result of a judicial decision and its continuance has been
possible due to some conventions.

The U.S. Constitution does not mention judicial review. This power, however, was used before
1787 by courts in several of the American states to overturn laws conflicting with state
constitutions. In 1789 the Congress of the United States passed the Judiciary Act, which gave
federal courts the power of judicial review over acts of state government. This power was used for
the first time by the U.S. Supreme Court in Hilton v. Virginia (1796).

In 1803, the power of judicial review was used for the first time by the U.S. Supreme Court to
declare an act of Congress unconstitutional. Acting under the doctrine of Implied Powers, the
Supreme Court in its judgement in Marbury v. Madison case (1803), admitted its existence and used
it. In this case, Chief Justice John Marshall explained and justified the exercise of judicial review to
strike down an unconstitutional act of Congress or states. While doing so the Supreme Court
referred to Article VI, Section 2 of the Constitution which reads, “This Constitution and the laws of
the United States which shall be made in pursuance thereof; and all treaties made or which shall be
made under the authority of the United States, shall be the supreme law of the land, and the judges
in every state shall be bound thereby, anything in the constitution or laws of any state to the
contrary notwithstanding.” This article of the constitution was taken to mean that the judges have
the power and duty to uphold the supremacy of the Constitution by not allowing any federal or state
laws to violate its provisions. While giving judgement in this case, which involved an interpretation
of the Judiciary Act 1789, Chief Justice Marshall enunciated this doctrine and observed that “a
written Constitution is superior to all other acts of government made under it; and it is the sworn
duty of federal judges to follow the constitution and give effect only to constitutional law and
determine which law prevails where there is conflict. If a Congressional law conflicted with the
Constitutional law, the court was bound to uphold the Constitution as the highest law of land.”
“Courts are to respect the Constitution and the Constitution is superior to any ordinary Act of
legislature.” Since then the Supreme Court has been exercising this unique power and has declared
a number of legislative powers null and void.
After the historic judgement in the Marbury v. Madison case, the Supreme Court has been regularly
using this power. After 1803, it was used only in 1857 in the Dred Scott case. Till today nearly 100
Congressional statutes have been declared unconstitutional by the Supreme Court. The Court has
always refused to apply judicial review to political questions.

Judicial Review is neither automatic nor mechanical. The bills passed by the Congress and the state
legislatures become operative the moment these become laws. These do not automatically go to the
court for judicial review. It is only when any law is specifically challenged or when during the
course of litigation in a case, the issue of the constitutionality of any law arises that the conducts
judicial review.

After the judicial review is conducted the Supreme Court can give 3 types of decisions. These are as
follows:
i. That the law is unconstitutional.
In this case, the law stands struck down and it ceases to operate form the date on which the Supreme
Court declares it invalid.

ii. That the law is constitutional and fair.

In this case, the law continues to operate as before without any change.

iii. That any part or some parts of the law are unconstitutional.
In this case, only the part or parts declared unconstitutional cease to operate and the rest of law
continues to operate. If, however, the part or parts declared unconstitutional are so integral to the
law that it cannot operate without them, the whole law becomes invalid.

Judicial review is done by a bench of the Supreme Court and not by a single judge. The verdict is
given by majority. Sometimes it is a majority of only a single judge.

· Due process of law as the basis of judicial review

On the basis of the Fifth Amendment of the Constitution, the scope of judicial review has become
very vast. In one of its clauses, it has been laid down that “the Government cannot deprive anyone
of life, liberty or property without due process of law.” The term “Due Process of Law” means that
the life, liberty or property of the people cannot be subjected to arbitrary and unfair limitations by
the law or the executive or even by the judges in the process of awarding punishments. In simple
words, it stands for free and fair trial for meeting the ends of justice. The Supreme Court has used
this principle to determine the validity of laws. The Supreme Court while conducting judicial
review, tests (1)as to whether the law has been made strictly in accordance with the provisions of
the Constitution or not; and (2)as to whether the law satisfies the ends of justice and meets ‘due
process of law’ i.e. whether it is fair and just or not. The law is declared invalid if it fails to satisfy
either of these two tests.

· Limitations on the Supreme Court in respect of Judicial Review

1) The Court does not conduct judicial review over political issues.
2) While declaring a law unconstitutional the Court has to assign reasons and specify the provisions
of the Constitution that it violates.
3) The Supreme Court conducts judicial review only in cases actually brought before it. It cannot
initiate the process of its own.
4) The law declared invalid ceases to operate for the future. The work already done on its basis
continues to be valid.
5) The Court has to demonstrate clearly the unconstitutionality of the law which is sought to be
declared invalid.

Judicial Review in India

The system of judicial review is also applicable in India. Although the term Judicial Review has not
been mentioned in the Constitution, the provisions of various Articles of the Constitution of India
have conferred the power of judicial review on the Supreme Court. Accordingly the constitutional
validity of a legislative enactment or an executive order may be challenged in the Supreme Court on
the following grounds –

1. Violation of fundamental rights.

2. Outside the competence of the authority which has framed it.
3. It is repugnant to the Constitutional provisions.

The Supreme Court considerably widened the scope of judicial review in India through its
judgement in Maneka Gandhi’s case. In this case, the Supreme Court accepted the concept of
natural justice as one essential component of law thereby importing the American concept of ‘due
process of law’ into our Constitution.
In the case of Charanjit Lal v. The Union of India, Justice Mukherjee observed: “The court should
prima facie lean in favour of constitutionality and should support the legislation if it is possible to
do so on any reasonable ground.” In pursuance of this attitude the Supreme Court of India has
enunciated the doctrine of severability, which implies that only those portions of the law are
declared as void which are inconsistent with the provisions of the Constitution and the rest of the
law is permitted to operate. The Courts in India have exercised power of judicial review with great
restraint and attached more importance to the express words of the Constitution rather than the spirit
of the Constitution.

Judicial Review under the Constitution of India stands in a class by itself. Under the Government of
India Act of 1935, the absence of a formal Bill of Rights in the constitutional document very
effectively limited the scope of Judicial Review power to an interpretation of the Act in the light of
the division of power between the centre and the units. Under the present Constitution of India the
horizon of judicial review was in the logic of events and things, extended appreciably beyond a
‘formal’ interpretation of ‘federal’ provisions.

The debates of Constituent Assembly reveal, beyond any dispute, that the judiciary was
contemplated as an extension of the Rights and an ‘arm of the social revolution’. Judicial Review
was accordingly, desired to be an essential condition for the successful implementation and
enforcement of the Fundamental Rights. Members of Constituent Assembly were agreed upon one
fundamental point that Judicial Review under the new Constitution of the U.S.A., where the
doctrine was more an ‘inferred’ than a ‘conferred’ power and more implicit than ‘expressed’
through constitutional provisions.

In the Report of the abhor Committee of Supreme Court, it was recommended that “a Supreme
Court with jurisdiction to decide upon the constitutional validity of acts and laws can e regarded as
a necessary implication of any federal scheme”. This was eventually extended to an interpretation
of the laws and executive orders on the touchstone of the Fundamental Rights. In the Draft
Constitution of India, this power of Judicial Review in relation to fundamental rights found formal
expression in Art. 8 (2) and Art. 25 (1) & (2) which, when adopted by the nation’s representatives
in the Constituent Assembly on November 26, 1949, became the new Arts. 13 (2) and 32 (1) & (2),
respectively, under the Constitution of India.
However there was a sharp controversy among the members of the Constituent Assembly over the
perpetually veered question of reconciling the conflicting concepts of the individuals’ fundamental
and basic rights and the socio-economic needs of the nation.

As a result Judicial Review, which was recognized as the basic and indispensable precondition for
safeguarding the rights and liberties of the individuals, was sought to be tempered by the urge for
building up a new society based on the concept of welfare and social righteousness. The
consequence was a drastic curtailment of the power of judicial Review of the Supreme Court of
India. The overriding need for ‘security of the State’ consequent on the partition of India and its
after-math, and growing fissiparous and subversive tendencies, merely provided further impetus to
the process and made it a fait accompli. What happened as a result was that the much debated ‘Due
Process Clause’, which was previously inserted in the original Draft Constitution, became the “first
casualty”, and was eliminated from the purview of the Rights to Personal Liberty. Under Art. 21 of
the new Constitution of India, it was replaced by ‘except according to procedure established by
law’, and in Art. 31 (1) it was substituted by ‘save by authority of law.’

Simultaneously with this ‘new awakening’, a cluster of provisions was incorporated into the
constitutional document so as to restrict the rights envisaged in Arts. 19, 21, and 31, and reduce the
Supreme Court’s power of Judicial Review to one of ‘formal’ review. Lest Judicial Review stood in
the way of social and economic progress, the door was kept wide open, through a comparatively
flexible amending procedure, to impose the ultimate will of the popular representatives in the matter
of removing constitutional limitations.
Constitution has been working for about 60 years since it is adopted, but it is indeed very difficult to
make a correct appraisal of the course and development of Judicial Review, and its specific
directions and tendencies.

The foundation of the Indian Supreme Court’s Review-power was laid firmly and well in the case
of A.K. Gopalan v. State of Madras. This case not only elucidated the principle of Judicial Review
and the basis on which it would rest in future, but at the same time evolved a set off guidelines
which would eventually set the pattern for the fundamentals of judicial approach to the Indian
Constitution. Form ‘Gopalan’ to ‘Golaknath’ is, indeed, a long march, not only in respect of the
nature and scope of Judicial Review itself, but in regard to the impact and consequences of such
Review on the attainment of social objectives, too.
These two cases represent two distinct lines of judicial thinking, two distinct tendencies, and, also
two separate sets of social philosophy. One represents a halting, over-cautious and tradition-bound
attitude of the judiciary in restricting its own freedom of action by sticking to the express
phraseology of the Constitution, scrupulously avoiding the nations of ‘Natural Justice’ and ‘Due
Process’, and construing the law in favour of the legislature; the other represents a big, bold, and
almost revolutionary effort to resurrect Judicial Review by expanding its horizon beyond a literal
interpretation of the Constitution, introducing novel concepts like ‘prospective overruling’ and
convening a Constituent assembly to amend the Fundamental Rights, and by prohibiting any
legislative amendment of Fundamental Rights in future. The ‘Gopalan’ decision, while restricting
the ambit of the individual’s rights to freedom and personal liberty, paved the way to the realization
of the social objectives by its clear enunciation of the principle of judicial subordination to
legislative wisdom and discretion, and by its emphasis on social control of individual liberties. The
‘Golaknath’ case, while trumpeting the individuals’ basic liberties as sacrosanct and transcendental,
has indeed, made it almost impossible to enact social welfare legislation.

The Supreme Court of India has used the power of judicial review in various cases. We may refer to
the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case
(1971), the Keshwananda Bharti case (1973), the Minerva Mills case (1980) and so on. However
while exercising the power of judicial review, the Supreme Court has never adopted the American
practise as it is.

One of the most significant cases decided by the Supreme Court was Golakhnath case of 1967in
which the Supreme Court held that the Parliament has no right to abridge or abrogate the
Fundamental Rights granted by the Constitution through an amendment of the Constitution. Thus it
made the Fundamental Rights transcendental and superior to the constituent power of the
Parliament through its power of judicial review. The Supreme Court continued this attitude in the
Bank Nationalisation and Privy Purses cases and challenged the right of the Parliament to curtail the
fundamental rights by the Parliament. This attitude of the Supreme Court obliged the Congress
Government to effect 24th, 25th and 26th amendments in the Constitution. It also made a bid to
curtail the right of the Supreme Court to declare a law affecting Fundamental Rights under article
14, 19 and 31 as void of the law was passed to give effect to the Directive Principles under Article
39 (b) or (c). These amendments were challenged in the Keshwanand Bharati case.

During the emergency a bid was made to restrict the scope of judicial review through the Forty-
Second Amendment. The power to determine the constitutional validity of the central laws was
exclusively vested in the Supreme Court and the High Courts were deprived of their right in this
regard.
The Janata Government on assumption of power made a bid to restore the powers which were taken
away from the judiciary during the emergency.by the Forty-Third Amendment passed in December
1977 it restored to the Supreme Court pre-emergency position with regard to power of judicial
review over the laws passed by the Parliament as well as the State Legislatures.

As a result of the Supreme Court judgement of March 1994 in the case of S.R.Bommai and others
v. The Union of India, also known as Assembly dissolution case, the scope of judicial review was
further widened. In recent years the judiciary has further widened his field of operation by declaring
‘judicial review’ as a basic feature of the Constitution. Thus the Supreme Court in India has not
merely interpreted the language of the Constitution but also pronounced on issues which involve
matters of policy.

Judicial Review in India and USA : Comparison

The scope of judicial review in India is narrower than that of what exists in USA, though the
American Constitution does not explicitly mention the concept of judicial review in any of its
provisions.
In USA the judges exercise judicial review in a very aggressive manner. If the judges think that a
particular law and the philosophy of it is not liked by the judges then, also the judiciary may reject
the law. But such a thing never happens in India. The Indian judges reject a law only on the basis of
unconstitutionality.
Moreover, it has also been seen that in USA, if a law is rejected by the Supreme Court then the
court will make a new law in its place. Although law making is not the responsibility of the
judiciary, the judiciary makes laws. Such judge-made laws are very common in USA. But in India
if a law is rejected by the Supreme Court, the Court leaves the matter of making new laws to the
legislative. This has also been described as Judicial Activism by some of the constitutional experts.

The American Constitution provides for ‘due process of law’ against that of ‘procedure established
by law’ which is contained in the Indian Constitution. The difference between the two is: the ‘due
process of law’ gives wide scope to the Supreme Court to grant protection to the rights of its
citizens. It can declare laws violative of these rights void not only on substantive grounds of being
unlawful, but also on procedural grounds of being unreasonable. Our Supreme Court, while
determining the constitutionality of a law, however examines only the substantive question i.e.,
whether the law is within the powers of the authority concerned or not. It is not expected to go into
the question of its reasonableness, suitability or policy implications.

The American principle of judicial supremacy is also recognised in our constitutional system, but to
a limited extent. Nor do we fully follow the British Principle of parliamentary supremacy. There are
many limitations on the sovereignty of the Parliament in our country, like the written character of
the Constitution, the federalism with division of powers, the Fundamental Rights and the Judicial
Review. In effect, what exists in India is a synthesis both, that is, the American principle of judicial
supremacy and the British principle of parliamentary supremacy.

The scope of judicial review in India is somewhat circumscribed as compared to that in the USA. In
India the fundamental rights are not so broadly coded as in the USA and the limitations there on
have been stated in the constitution itself and this task has not been left to the courts. The
constitution makers adopted this strategy as they felt that the courts might find it difficult to work
out the limitations on the fundamental rights and the same better be laid down in the constitution
itself. The constitution makers also felt that the judiciary should not be raised at the level of ‘Super
Legislature’, whatever the justification for the methodology adopted by the makers of the
Constitution, the inevitable result of this has been to restrict the range of judicial review in India.

It must, however, be conceded that the American Supreme Court has consumed its power to
interpret the constitution liberally and has made so thorough a use of the due process of law clause
that it has become more than a mere interpreter of law. It has, in fact come to occupy the position of
a maker of law and has been correctly described as a ‘third chamber of the legislature, indeed, as a
super legislature.’ Of course, the US Supreme Court has assumed this position; it has not been
specifically conferred upon it by the constitution.

The framers of the Indian constitution took good care not to embody the due process of law clause
in the constitution. On the contrary, the Indian constitution refers it to ‘procedure established by
law’. It can invalidate laws if they violate provisions of the constitution but not on the ground that
they are bad laws. In other words the Indian Judiciary including the Supreme Court is not a Third
Chamber claiming the power to sit in judgement on the policy embodied in the legislation passed by
the legislature.
The power of judicial review is exercised differently in different political systems. In countries like
the United Kingdom where the constitution is largely unwritten and unitary in character and
parliament is sovereign, the courts can declare an act of parliament to be incompatible with the
constitution, but they cannot invalidate a law for being inconsistent with the constitution. In other
words, the judiciary can only interpret the constitution.
In Germany, the Constitutional Court is empowered to shoot down not only ordinary laws but also
constitutional amendments for being inconsistent with the fundamental character of the constitution.
The situation is different in countries where a written and federal constitution limits the powers of
parliament. For instance, in the USA, the Supreme Court can strike down legislation enacted by
Congress if it finds the same to be incompatible with the constitution.

However in India, there has been a long tussle between parliament and the Supreme Court on the
scope and limits of judicial review. The twenty-fourth amendment to the constitution passed in
1971 authorised parliament to amend any provision of the constitution. However, the Supreme
Court subsequently declared that while parliament was competent to amend any provision of the
constitution, any amendment had to conform to the basic framework of the constitution. This led the
government of Prime Minister Indra Gandhi to introduce the forty-second amendment to the
constitution during the proclamation of emergency, which stripped the apex court of the power of
reviewing an amendment to the constitution. However, the forty-third and forty-fourth amendments
undid the provisions of the forty-second amendment regarding powers of the Supreme Court to
judge the validity of constitutional amendments.
Thus we see that the scope of Judicial Review in India is somewhat circumscribed as compared to
that in the U.S.A.
In India the fundamental rights are not so broadly coded as in the U.S.A and limitations there on
have been stated in the constitution itself and this task has not been left to the courts. The
constitution makers adopted this strategy as they felt that the courts might find it difficult to work
act the limitations on the fundamental rights and the same better be laid down in the constitution
itself.
The constitution makers also felt that the Judiciary should not be raised at the level of 'Super
legislature', whatever the justification for the methods logy adopted by the constitution makers, the
inevitable result of this has been to restrict the range of judicial review in India.
It must, however, be conceded that the American Supreme Court has consumed its power to
interpret the constitution liberally and has made so thorough a use of the due process of law clause
that it has become more than a more interpreter of law.
It has, in fact come to occupy the position of a maker of law and has been correctly described as a
'third chamber of the legislature, indeed, as a super legislature. Of course, the U.S. Supreme Court
has assumed this position; it has not been specifically conferred upon it by the constitution.
Like the American Supreme Court, the Supreme Court of India enjoys the power of Judicial
Review' and this power has been specifically recognized by the constitution. However its authority
in relation to 'judicial review of legislation is more restricted than that of the American Supreme
Court.
The framers of the Indian constitution took, good care not to embody the due process of law clause
in the constitution on the contrary, the Indian constitution refers to 'procedure established by law'
consequently, there has been no scope for the development "Alexandrowicz is not conceived as an
additional constitution maker but as a body to apply express law."
It can invalidate laws if they violate provisions of the constitution but not on the ground that they
are bad laws. In other words the Indian Judiciary including the Supreme Court is not a Third
Chamber claiming the power to sit in judgement on the policy embodied in the legislation passed by
the legislature.

Conclusion
Like the American Supreme Court, the Supreme Court of India enjoys the power of judicial review
and this power has been specifically recognised by the constitution. However, we see that its
authority in relation to ‘judicial review’ of legislation is more restricted than that of the American
Supreme Court.

Though the courts have the power of judicial review, the same cannot be exercised in an arbitrary
fashion. If the law-making power of parliament is not unlimited, the courts` power to review the
laws passed by parliament is also not unlimited. Like other organs of the state, the judiciary derives
its powers from the constitution and the judges are as much under the constitution as anyone else.
They can interpret and invalidate laws but they cannot themselves assume the law making function;
nor can they confer that function on any person or institution other than the federal or provincial
legislatures. Nor can the courts make constitutional what is manifestly unconstitutional. Sovereignty
is located neither in parliament nor in the judiciary but in the constitution itself.

Despite various shortcomings of judicial review, it cannot be denied that it has played an important
role in ensuring constitutional government in the country by keeping the centre and the states in the
respective spheres. It has also enabled the Constitution to change according to changed conditions
by imparting new meaning to the constitution. Through the exercise of this power, the Supreme
Court has protected the freedom of citizens and protected their Fundamental Rights against
encroachment by the legislative and executive wings of the government.

There is nothing in the world which is bad or good for itself but it is its uses which make it bad or
good. This review system also has same situation. If Supreme Court use it only for country then it is
very good but if Supreme Court uses it and keeps their own interests in mind, it is worse for country
as well as countrymen.

But we know that after principle of judicial care, Supreme Court never use it against national
interests and judges keeps national interests, safety, progress and dignity in their mind instead of
their own interests or conflicts.

So we can say it is very useful and beneficial for the country of USA and also in India.
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