JUDICIAL REVIEW: A

COMPARATIVE ANALYSIS
OF INDIA, UK AND USA

SUBMITTED BY: SUBMITTED TO:

NAME – ANJALI SINHA DR. J. P. YADAV & DR. AXITA
ENROLLMENT NO. – A8101821103. SRIVASTAVA
LL.M. (2021-22)

AMITY LAW SCHOOL

AMITY UNIVERSITY
LUCKNOW CAMPUS, LUCKNOW
INTRODUCTION
Judicial review is borrowed from US system of government. It the actions of the executive and
legislative branches of government which are subject to review and possible invalidation by the
judiciary. It allows the Hon’ble Supreme Court to take an active role in ensuring that the other
branches of government abide by the Constitution.

Judicial review is referred as a court proceeding in which reviews are provided by the respected
judges regarding the lawfulness of a decision or action made by a public body. It is considered as
a power exerted by the courts of a country to examine the actions of the legislatures, executive
and administrative arms of the government. It also helps to ensure that such actions conform to
the provisions of the nation’s conference. In India, judicial review is also known for the
interpretational and observer roles of the Indian judiciary. However, there is no express provision
in the Constitution of India empowering the courts to invalidate laws, but a limitation has been
imposed on each organ, the violation of which will declare the law void. The courts are entrusted
with the power to keep a check whether any of the constitutional limitations has been
transgressed or not.

There is both positive as well as negative perspective of judicial review. As judicial review is
essential to maintain supremacy, to keep check on misuse of power, protect the rights of the
people, maintain balance, it also prevents tyranny of executives; on the other hand, it limits the
functioning of the government, repeated interventions of the court may diminish the faith of the
people in the integrity, quality, and efficiency of the government.

Some of the examples where judicial review may be considered are in cases of decisions of
regulatory bodies, decisions relating to prisoner’s right, decisions of immigration and asylum.

However, judicial review is not always the remedy, alternatives such as appeal against the
decision can also be conferred upon because it is not necessary for the decision to change after
judicial review, the public body may give the same decision again, so long as it does so in a
lawful way.

JUDICIAL REVIEW IN INDIA

The spirit of the Constitution of India is the supremacy of law. In India, judicial review is
considered as the hallmark and the basic feature of the Constitution. Though there is no express
provision in the Indian Constitution but it is an integral part of it. An effective system of check
and balance between legislature and executive is reviewed by the courts, this power of court is
referred as judicial review. The major objective is to ensure that there is no abuse of power by
the authority and the individual gets a just and fair treatment.

The perceived notion of judicial review is to justify some alleged rights of one party to litigation
and thus granting relief to the aggrieved party by declaring an enactment void, if in law it is void.
But its real purpose is something higher i.e., no statute which is repugnant to the Constitution
should be made enforceable by the Court of Law. 1 Some restrictions were imposed on the
powers of the Governor General in Council in evading laws by the Government of India Act,
1858 and the Indian Council Act, 1856 but there was no provision of judicial review.

In 1877, the first case which interpreted and originated the concept of Judicial Review in India
was Emperor v. Burah2, the court held that the aggrieved party had right to challenge the
constitutional validity of a legislative act enacted by the Governor General Council in excess of
the power given to him by the Imperial Parliament. The High Court and Privy Council observed
and adopted that Indian Courts had power of Judicial Review with some limitations. In Secretary
of State v. Moment3, Lord Haldane observed that “the Government of India cannot by legislation
take away the right of the Indian subject conferred by the act of Parliament i.e., the Government
of India Act, 1858. Further, in Annie Besant v. Government of Madras 4, on the basis of the
decision of Privy Council, the Madras High Court observed that there was fundamental
difference between the legislative powers of the Imperial Parliament and the authority of the
subordinate Indian Legislature. Any enactment of the Indian Legislature is excess of the
delegated powers or in violation of the limitation imposed by the imperial Parliament will be null
and void.

JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS

1
JUSTICE CK THAKKAR & JUSTICE ARIJIT PASAYAT, DR. CD JHA JUDICIAL REVIEW OF
LEGISLATIVE ACTS 116 (2d ed. Lexis Nexis Butterworths Wadhwa, 2009).
2
(1877) ILR 63 (Cal).
3
(1913) 40 ILR 63 (Cal).
4
(1918) AIR 1210 (Mad).
There are certain cases in which the Hon’ble Supreme Court scrutinized the validity of the
Constitutional Amendments by using the Doctrine of Judicial Review. Constitutional
Amendments are rigid in nature, although Parliament has the supreme power to make
amendments but cannot abrogate its basic structure.

The various cases in which Constitutional Amendments were challenged are described as:

1. Shankari Prasad v. Union of India5, the validity of the Constitution (1st Amendment)
Act, 1951 was challenged. The Hon’ble Supreme Court held that the power to amend
the constitution is contained in Article 368 and the word ‘law’ in Article 13(2) includes
only an ordinary law made by the legislative powers and does not include constitutional
amendments made by the exercise of constituent powers. Therefore, amendments made
under Article368 is not law under Article 13 of the Constitution of India. The First
Amendment Act was held constitutionally valid.
2. Sajjan Singh v. State of Rajasthan 6, the validity of the Constitution (17th Amendment)
Act, 1964 was challenged. The Hon’ble Supreme Court held by the ration of 3:2 that
Article 368 gives the power to amend Article 13(2) and thus, the power in question can
3. I. C. Golak Nath & Ors. V. State of Punjab 7, the validity of the Constitution (17th
Amendment) Act, 1964 was again challenged and was referred to a larger bench of 11
Judges. The Hon’ble Judges with a majority of 6:5 overruled earlier judgements of
Shankari Prasad’s case and Sajjan Singh’s case and held that the word ‘law’ in Article
13(2) includes statutory as well as constitutional law and hence a constitutional
amendment made under Article 368 which contravened Article 13(2) will be declared
void.
4. Kesavananda Bharati v. State of Kerala 8, the petitioner challenged the validity of Kerala
Land Reforms Act, 1963 which got amended during the pendency of the petition in
1971 and then was placed in ninth schedule by the Constitution (29 th Amendment) Act.
Furthe, in this case the validity of the Constitution (24th Amendment and 25th
Amendment Amendment) Act, 1971 and the Constitution 29 th Amendment Act, 1972
was challenged. The Hon’ble Supreme Court held that under Article 368 the Parliament
5
AIR 1951 SC 458
6
AIR 1965 SC 845
7
AIR 1967 SC 1643
8
AIR 1973 SC 1461
 has power to amend the fundamental rights but cannot take away or abridge the Basic
Structure of the Constitution.
CJI Sikri gave the list though not exhaustive of the points that may be contained in the
Doctrine of Basic Structure:
 Supremacy of the Constitution,
 Separation of power,
 Federal character,
 Secular character of the Indian Constitution,
 Republic and democratic form of Government.
5. Indira Nehru Gandhi v. Raj Narain9, the validity of clause 4 of Article 329-A inserted by
the Constitution (39th Amendment) Act was challenged. The Hon’ble Supreme Court
struck down this clause as it violated the free and fair election which was an essential
part of democracy and it also violated the basic structure of the Constitution.
6. Minerva Mills v. Union of India10, the validity of clauses (4) and (5) of Article 368,
inserted by Section 55 of the Constitution (42nd Amendment) Act was challenged. The
Hon’ble Supreme Court struck down these clauses as destructive of the basic structure
of the constitution because these clauses removed all the limitations on the amending
power of the Constitution and conferred an unlimited amending power. Further in this
case, judicial review was added to the list of basic structure of the Constitution.

JUDICIAL REVIEW OF PARLIAMNETARY AND STATE LEGISLATIVE

ACTIONS

Articles 245 and 246 of the Constitution of India provides legislative powers to the Parliament
and the State Legislatures. Article 245(1) states, “subject to the provisions of the constitution, the
parliament may make law for the whole and any part of the territory of India and a State
Legislature may make a law for whole of the state and any part thereof”. These words impose
limitations as well as provide the essence of Judicial Review on legislative actions. Under Article
141 of the Constitution of India the Supreme Court incorporated the ‘Doctrine of Precedent’ to
implement its own view on any conflicted issue and it will also have a binding force.

9
AIR 1975 SC 865
10
AIR 1980 SC 1789
There care certain judicial observations made by the Hon’ble Supreme Court regarding the
legislative actions of Parliament and State Legislatures.

1. S. P. Sampat Kumar v. Union of India 11, the Constitutional validity of Administrative

Tribunal Act, 1985 was challenged. The Act has excluded the jurisdiction of High Courts
under Articles 226 and 227 in service matters which led to destruction of the principle of
judicial review. The Hon’ble Supreme Court held that though the Act excluded the
jurisdiction of Hugh Courts but the jurisdiction of Supreme Court under Articles 32 and
136 is present. Further, it was stated that if there is exclusion of jurisdiction of High
Courts then, there must be an effective alternative institutional mechanism for judicial
review authority. An essential feature of judicial review cannot be taken there must be
alternative mechanism present for the same.
2. L. Chandra v. Union of India12, the validity of clause 2(d) of Article 323-A and clause
3(d) of Article 323-B was challenged. The Constitutional Bench unanimously held that
“these provisions are to the extent that they exclude the jurisdiction of the High Courts
and the Supreme Court under Articles 226/227 and 32 of the Constitution of India are
unconstitutional as they damage the power of judicial review. Under Articles 226/227
and 32 the High Courts and the Supreme Court are vested with the power of judicial
review over legislative actions, it is considered to be an integral part of our Constitution
and also forms a part of its basic structure.
3. I. R. Coelho v. State of Tamil Nadu 13, the petitioner had challenged the various Central
and State laws put in the Ninth Schedule including the Tamil Nadu Reservation Act. The
nine judges bench held that “any law placed in the Ninth Schedule after April 24, 1973
when Keshvananda Bharati’s case judgement was delivered will be open to challenge,
the court said that the validity of any Ninth Schedule law has been upheld by the
Hon’ble Supreme Court and it would not be open to challenge it again, but if a law is
held to be violation of fundamental rights incorporated in Ninth Schedule after the
judgement date of Keshvananda Bharati’s case, such a violation shall be open to
challenge on the ground that it destroys or damages the basic structure of constitution”.

11
AIR 1987 SCR (1) 435
12
AIR 1997 SC 1125
13
AIR 2007 SC 861
 The Hon’ble Supreme Court observed that ‘judicial review of legislative actions is the
touchstone of the basic structure of the constitution’.

JUDICAL REVIEW OF ADMINISTRATIVE ACTIONS

The most important development in the field of public law is judicial review of administrative
actions and it was derived from Britain. It aims to protect citizens from abuse of power by any
branch of State.” When the legislative confers discretion on a court of law or on an
administrative authority, it also imposes responsibility that such discretion is exercised honestly,
properly and reasonably.”14 Generally, courts have no authority to interfere with the matters
relating to administrative authorities in exercise of discretionary powers. However, it is not
conclusive to have no power over the discretion of administration. In India, the court may
interfere on two grounds: failure to exercise jurisdiction and excess or abuse of discretion. On
the following grounds judicial review of administrative action can be exercised:

1. Illegality – The decision maker must follow the decision-making power provided to him
and give effect legally to those powers conferred upon him.
2. Irrationality - Outrageous, illogical or such decision which is unacceptable by the society.
Judicial review can be made in such situation in public interest.
3. Procedural impropriety – Procedures and actions must be fair, reasonable and just for
taking administrative decisions.
4. Proportionality – The relation between the administrative decision and action must be
rational.
5. Unreasonableness – Authority or the decision is partial and unequal in its operation. The
authority must take reasonable care and caution.

Thus, if judiciary found any illegality or other factors mentioned of any administrative action, it
is the duty of the judiciary to maintain check and balance.

PRESENT SCENARIO OF JUDICIAL REVIEW IN INDIA

The Hon’ble Supreme Court since the era of Shankari Prasad’s case to I R Coelho’s case
magnified the concept of Doctrine of Judicial Review in India. In the present scenario, the

14
De Smith, Judicial Review of Administrative Action (1995) 296-99, CK TAKWANI, Lectures on Administrative
Law 276 (4th ed. Eastern Book Company 2008).
Supreme Court plays a very important role in interpreting the Constitutional provisions and now
the concept of Judicial Review has developed as a fundamental feature or basic feature of the
Constitution. In the recent judgement of Madras Bar Association v. Union of India 15,some of the
provisions of the Companies Act, 1956 was scrutinized by the Hon’ble Supreme Court and was
declared ultra vires. The petitioner challenged the constitution of NCLT and NCLAT and also
challenged the formation of the Committee and the appointment of the judicial members as well
as the technical members. The Constitution of the Board of company law administration is
constituted under Sections 409(3)(a), 409(3), 411(3) and 412(2). The Supreme Court upheld that
validity of NCLT and NCLAT, but on the other hand declared the above mentioned provisions
unconstitutional and ultra vires on the ground that any institution performing judicial functions
should constitute members having judicial experience and expertise. Thus, judicial members
were to exceed the technical members so as to maintain the essential features of the Constitution
of India.

JUDICIAL REVIEW IN USA

The Constitution of America is written and federal democratic in spirit. It is based on the Rule of
Law and provides for separation of powers with check and balances. In USA, if the actions of
Congress or the President is contrary to the Constitution then, judiciary can keep a check and can
declare it null and void. The Constitution of the USA does not expressly provide any provision
for Judicial Review but it is implicitly incorporated in the Articles III and IV. According to the
Bernard Schwartz, “the decision on the question of constitutionality of a legislative act is the
essence of the judicial power under the Constitution of America.”16 Justice Frankfurter in
Gobitiz17 case laid down that “Judicial Review is a limitation on popular government and is a
part of the Constitutional scheme of America”.

The main objectives of Judicial Review in the USA are as follows:

1. To declare the laws unconstitutional if they are contrary to the American Constitution.
2. To defend the valid laws which are challenged to be unconstitutional.
3. To protect and uphold the Supremacy of the Constitution by interpreting its provision.

15
AIR 2015 SCC 484
16
BERNARD SCHWARTZ, THE POWERS OF GOVERNMENT 19 (2nd ed., The Macmillan Company).
17
Gobitiz 310 U.S. 586, 600 (1940).
 4. To save the legislative functions of Congress being encroached by other departments of
the Government.
5. To keep a check on the actions of Congress and the State legislatures.

The Constitution dies not mention judicial review. However, this power was used by the courts
in several American states before 1787. In 1789, the Congress passed the Judiciary Act, which
provided the courts with a power of judicial review over the acts of State Government. But in
United States v. Tale Todd18, the Hon’ble Supreme Court of USA declared the Act of Congress
unconstitutional. Further, in Hylton v. United States 19, the Congress introduced a tax on carriages
owned by an individual or business of sixteen dollars. The question was whether this tax was a
direct tax to be apportioned among the states? The court held that the carriage tax does not
include carriage tax or the taxes on the possession of goods.

LANDMARK CASE OF MARBURY V. MADISON

In the landmark judgement of Marbury v. Madison20, the historic case in which the Act of
Congress was declared unconstitutional and the power of judicial review was again came in
action by the judicial authority. In this case, when President John Adams lost the second term
election in 1801, he misused last days of his governance for making some substantial number of
political arrangements. And when the new President Thomas Jefferson entered into office
ordered his Secretary of State James Maddison to not convey any official printed document or
material to administrative authorities named by Adams.

The administrative authorities including William Marbury were denied of their new
employments. Thus, a writ petition of Mandamus was filed by William Marbury in the U.S.
Supreme Court.

The Chief Justice John Marshall held that the court does not have jurisdiction to issue mandamus
because the court is required to have the appellate jurisdiction to issue the writ of Mandamus.
The court also held that Congress has no power to expand the scope of the Supreme Court
beyond the Scope of Article III of the Constitution. The Supreme Court of USA has inherent

18
United States v. Tale Todd, 77 U.S. 617, 12 (1794).
19
Hylton v. United States, 3 U.S. 137, 12 (1796).
20
Marbury v. Madison, 5 US 137 (1803).
power to determine the validity of law. It, thus, declared Section 13 of the Judiciary Act of 1789
unconstitutional and dismissed the petition and hence, Madison didn’t get the commission.

Hence, the Supreme Court of USA formulated the concept of Judicial Review. Prior to this
judgement none of the Act of Congress or any action was declared unconstitutional with full
judicial authority. The very foundation of power of judicial review by the judiciary was led down
in this historic case.

John Hart Ely suggested that the proper functioning of court and the principle of interpretation in
a new sphere. He said that “the purpose of the court is to protect the process of coordinating
popular government with minority protection -in other words to protect the process of
representation.”21 However, in the US Constitution judicial review has shown progression and
innovation but has not been envisaged in the original constitutional scheme. A political scientist
Benjamin F. rightly remarked that “it is a singular fact that the framers excluded the judiciary
from policy-making.”22

In McCulloch v. Maryland23, a dispute regarding the Federal Law and State Law arose. In the
State of Maryland, a bank named Bank of America was established by Federal law. The, a tax
imposing taxes on banks for relative transactions was imposed by the State of Maryland. The
Court held that State cannot impose tax in Union Authority. It further created a immunity to the
National Government and the doctrine was formulated by the US Supreme Court in this
judgement namely the Doctrine of Immunity of Instrumentalities.

In Youngstown Sheet Tube Co. v. Sawyer 24, to avoid the national adversity prevailing at that
time, President Truman ordered the seizure of steel. In this way President made a allow to seize
the steel of all the citizens. The Court held on the opinion of Justice Black that it is the instance
wherein the legislative encroachment by the Executive was held unconstitutional and
furthermore, observed that Constitution of USA does not provide law making power to
Presidential or Military supervision or control.

21
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, Cambridge
1980).
22
Benjamin F. Wright, The Growth of American Constitutional Law (Reynal & Hitchcock by Houghton Mifflin
Company, 1942) 18-20.
23
McCulloch v. Maryland, 4 Wheaton 316, 32 (1819).
24
Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 32 (1952).
PRESENT SCENARIO OF JUDICIAL REVIEW IN USA

The scope of judicial review has widened in US after Marbury’s case. In Reed v. Town of
Gilbert, Arizona25, an ordinance was passed concerned with Gilbert town. It prohibits the display
of outdoor sign except some signs which are political signs which were defined as designs to
influence the outcome of an election, and ideological signs which were defined as designs for
directing the public to church or other qualifying event. This ordinance was challenged by a
church and its priest. Justice Clarence Thomas on behalf of the majority held that distinctions
drawn by the ordinance were impermissible. It was held that all content based law requires the
exact form of judicial review and strict scrutiny. Court further held that content-based laws target
speech based on its communicative content, they are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly tailored to serve compelling state
interests.

JUDICIAL REVIEW IN UK
The system of judicial review is primarily based on the common law. The right to judicial review
in Britain is merely a practical aspect of the rule of law. In UK there is a system which is based
on Legislative Supremacy and Parliamentary Sovereignty. The Doctrine of Parliamentary
Sovereignty which means the court has no power to determine the legality of Parliamentary
enactments. Earlier, in UK there was no scope of judicial review but after the formation of
European Convention of Human Rights, the scope of judicial review became wider. UK does not
have written Constitution. In UK, principle of Parliamentary Sovereignty dominates the
constitutional democracy.

Primary legislation are basically enacted by the Parliament and Secondary legislation provides
rules, regulations, directives and act of Ministries. Except in few cases which encroaches upon
the law of European Community, primary legislation is outside the purview of judicial review.
After the formation of European Union and Human Rights Acts, 1998, primary legislation is
subject to judicial review in some cases. However, secondary legislation is subject to judicial
review with no exceptions. All the executive and administrative functions, rules, regulations can
be reviewed by the court and any be declared ultra vires and unlawful.

25
Reed v. Town of Gilbert, Arizona, 13 US 502, 23, (2014).
In R v. Secretary of State for Transport26, the court observed that by relying upon the direct effect
of community law, the individual may be able to challenge national measures and can declare
them unlawful. Further, it was observed that all national measures can be subject the judicial
review on the grounds of incompatibility with the community law, i.e., primary legislation,
secondary legislations and administrative decisions.

In Les Verts v. European Parliament27, it was held that the European Union is a communal bases
on the Rule of Law, in as much as neither its member states nor its institutions can avoid a
review of the question whether the measures adopted by them are in conformity with the basic
constitutional character.

PRESENT SCENARIO OF JUDICIAL REVIEW IN UK

In the present scenario administrative actions of executive nature are mostly the subject matter of
judicial review. In R (on application of Drammeh) v. Secretary of State for the Home
Department28, an immigration detainee who had failed to take his medication for schizo-affective
disorder and had gone on hunger strike, but did not lack mental capacity and failed to establish
that his detention was unlawful by virtue of his pre-existing serious mental health. The claimant
applied for judicial review of the lawfulness of his immigration detention. It was held that the
effect of detention on a detainee’s mental health was a relevant factor in evaluating reasonable
period of detention. The Secretary of State’s policy in Chapter 55.10 of the Enforcement
Instructions and Guidelines provide a duty to inquire whether serious illness existed and whether
it could be satisfactorily managed in detention. Further, it was held that where a detainee had
capacity, his refusal to consent to medical treatment put him outside the scope of the Secretary of
State’s policy statements.

CONCLUSION
Concluding thereby, the scope of judicial review in India is wider as compared to UK and USA.
In the Constitution of India, there are specific and extensive provisions of judicial review such as
Articles 13, 32, 131-136, 143, 226, 227, 246 and 372. However, in US Constitution there is no
such specific provisions, although Article III, IV and V incorporates power of judicial review. In
26
R v. Secretary of State for Transport, 2 A.C. 85, 34 (1990).
27
Les Verts v. European Parliament, 1 E.C.R 1339 (1986).
28
R v. Secretary of State for Home Department, 3 EWHC 2754 (2015).
UK, there is no express provision of judicial review and it totally depends upon the discretion of
the Court.

In India, the power of judicial review may be utilized in three dimensions like review of
Constitutional Amendments, Legislative Acts and Administrative Acts. Whereas, in USA
review of Constitutional Amendments is rarely used and there the Hon’ble Supreme Court has
power to scrutinize the statute and Administrative Acts which is contrary to the Constitution.
However, in UK there is no such provision but secondary legislations are subject to judicial
review in UK. However, the present scenario is UK has provided a number of decisions in which
the Court has exercised its review power to declare some statutes incompatible with conventional
rights.

Thus, it is an indisputable fact that the power of judicial review is the need of an hour and is
extremely important, although an absolute power of review cannot be granted but by observing
the elements of the basic features of the Constitution, a special intention of judicial review is to
keep check and balance is provided to the authorities.