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DEMOCRATIC ANALYSIS OF JUDICIAL REVIEW: DEBATE ON JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT
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DEMOCRATIC
ANALYSIS OF JUDICIAL REVIEW: DEBATE ON JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT
AUTHORED
BY - CHERRY SINGHAL AND
VANSH
CHADHA
The
assessment of legal validity by the judiciary, known as judicial review, plays
a pivotal role in contemporary democratic governance, ensuring that legislative
and executive actions conform to constitutional principles. This study delves
into the multifaceted function of judicial review within constitutional
democracies, focusing particularly on its application in India while drawing
parallels with international democratic norms. Fundamentally, judicial review
authorizes the judiciary to evaluate the constitutionality of laws and
governmental measures, thereby safeguarding individual liberties, maintaining
constitutional order, and preserving the system of checks and balances within
the government. Through landmark cases like Marbury v. Madison in the United
States and Kesavananda Bharati v. State of Kerala in India, judicial review has
asserted its significance in upholding the supremacy of the constitution. This
study examines the ongoing discourse between judicial activism and judicial
restraint, analyzing how divergent judicial ideologies impact the breadth and
depth of judicial review. Moreover, it underscores the importance of judicial
review in adjudicating disputes, fostering public trust in legal and political
institutions, and upholding the integrity of democratic processes. Through an
in-depth analysis of the intricacies of judicial review, this study aims to
offer a comprehensive comprehension of its role in balancing governmental authorities
and preserving democratic values across varied political contexts.
Keywords:
Judicial Review, Constitutional Democracy, Judicial Activism,
Judicial Restraint, Separation of Powers
Judicial
review is an essential cornerstone of constitutional democracies globally,
epitomizing the principle that all individuals, institutions, and governmental
entities are subject to the law. It entails the judicial examination of the
conformity of legislative and executive actions with the principles and
provisions outlined in the constitution.[1]
The notion of judicial review has been fundamental to contemporary democratic
governance, providing a mechanism to safeguard individual rights, uphold the
separation of powers, and maintain the rule of law.[2]
Fundamentally,
judicial review encompasses the authority granted to the judiciary to assess
the constitutionality of laws, regulations, executive orders, and other
governmental actions. This power enables courts to nullify actions that violate
the constitution, thereby protecting the rights and freedoms of individuals.
Judicial review functions as a system of checks and balances, preventing
potential abuses of power by the legislative and executive branches of
government.[3]
In
practical terms, judicial review entails courts interpreting the constitution
and evaluating whether the actions of other branches of government align with
its provisions. Should a law or action be deemed unconstitutional, courts
possess the authority to render it null and void.[4]
This authority empowers the judiciary to uphold the supremacy of the
constitution and verify that governmental actions align with its principles.[5]
The
pivotal case of Marbury v. Madison (1803)[6]
established the principle of judicial review in the United States. In this
instance, the Supreme Court deemed a congressional act unconstitutional,
establishing a precedent for judicial oversight of the legislative branch.
Similarly, in Kesavananda Bharati v. State of Kerala (1973)[7],
the Indian Supreme Court affirmed the doctrine of basic structure, asserting
that Parliament cannot amend the constitution in a manner that undermines its
fundamental framework.
The importance of judicial review in constitutional democracies cannot
be overstated. It fulfils several critical functions that are indispensable for
the operation of democratic systems:
- Protection
of Individual Rights: Judicial review serves as a barrier against
governmental encroachment upon individual rights. Through the examination
of laws and policies, courts can deter the implementation of measures that
contravene the rights safeguarded by the constitution, including freedom
of speech[8],
religion[9],
and privacy[10].
- Preservation
of Constitutional Order: Judicial review contributes
to upholding the integrity and coherence of the constitution by verifying
that all governmental actions adhere to its provisions. This preservation
fosters the rule of law and mitigates the risk of arbitrary exercises of
power by government officials.[11]
- Checks
and Balances: Via judicial review, courts play a pivotal
role in sustaining the equilibrium of power among the branches of
government. By subjecting legislative and executive actions to scrutiny
against the constitution, the judiciary impedes any single branch from
attaining excessive dominance or exceeding its authority.[12]
- Resolution
of Disputes: Judicial review furnishes a platform for
resolving disputes between various branches of government, between
governments and individuals, and among individuals. Courts act as neutral
arbitrators, applying legal principles to settle conflicts and uphold the
tenets of justice.[13]
- Promotion
of Public Confidence: The presence of judicial review cultivates
public trust in the legal and political framework. With the assurance that
their rights are safeguarded and that governmental actions are subject to
evaluation by an impartial judiciary, citizens are inclined to place
greater faith in the equity and validity of the democratic process.[14]
The aim of this paper is to explore
the intricate role of judicial review in constitutional democracies,
concentrating on examining its application within the Indian context and
juxtaposing it with other democratic systems worldwide.
Judicial
review, as a conceptual framework, has undergone a profound and intriguing
evolution throughout history, influencing the governance structures of diverse
societies. Its origins can be traced back to ancient civilizations, where rulers
often found themselves under the scrutiny of religious or legal authorities.
For instance, in ancient Greece, the notion of "isonomia"
(equality before the law) laid the groundwork for the belief that even the
highest authority should be bound by legal restrictions. Similarly, in ancient
Rome, the principle of "auctoritas" (authority) was
constrained by legal limitations, exemplified by the Senate's role in
overseeing the actions of magistrates.[15]
Nonetheless,
it wasn't until the Enlightenment era in Europe that the
contemporary notion of judicial review started to emerge. The works of
political thinkers like John Locke and Montesquieu
underscored the significance of dividing powers within government and
subjecting them to legal limitations. These concepts provided the foundation
for the advancement of constitutionalism and the rule of law.[16]
One
of the earliest instances of judicial review is evident in medieval England,
where the Magna Carta of 1215 introduced the principle that even
the monarch was accountable to the law. Across centuries, English common law
courts gradually asserted their power to scrutinize the actions of the king and
other governmental figures, establishing significant precedents for judicial
independence and accountability.[17]
The
pivotal moment in the evolution of judicial review occurred with the landmark
case of Marbury v. Madison (1803)[18]
in the United States. Chief Justice John Marshall's ruling in this case
solidified the principle of judicial review as an inherent authority of the
judiciary under the U.S. Constitution. Marshall famously asserted that it is
"emphatically the province and duty of the judicial department to say
what the law is," thereby affirming the judiciary's power to interpret
and nullify laws that conflict with the Constitution.[19]
1. United
States: The United States has been a leading figure in the
advancement of judicial review. Expanding upon the precedent established by
Marbury v. Madison[20],
the U.S. Supreme Court has been pivotal in shaping constitutional law through
significant rulings. Cases such as Brown v. Board of Education (1954)[21]
and Roe v. Wade (1973)[22]
exemplify the Court's ability to invalidate laws that infringe upon fundamental
rights or constitutional principles.
2. United
Kingdom: In the United Kingdom, the development of judicial
review has been shaped by the absence of a written constitution and the
doctrine of parliamentary sovereignty. Nevertheless, UK courts have
progressively asserted their power to scrutinize the actions of government
officials and guarantee adherence to human rights principles. The case of R
(Miller) v. Secretary of State for Exiting the European Union (2017)[23]
serves as an illustration of the judiciary's readiness to intervene in matters
of constitutional importance.
3.
India:
India's encounter with judicial review is distinctive, given the nation's
adoption of a written constitution and a federal system of governance. The
Indian Supreme Court has emerged as a formidable protector of constitutional
principles, with seminal cases such as Kesavananda Bharati v. State of
Kerala (1973)[24]
solidifying the doctrine of basic structure and broadening the ambit of
judicial review to safeguard fundamental rights.
India,
boasting a robust constitutional framework and a vibrant democracy, has
experienced the profound influence of judicial review on governance, rights
protection, and the rule of law.
The
Indian Constitution, enacted in 1950, establishes the framework for judicial
review through various provisions:
1. Article
13[25]:
This provision stipulates that any legislation contradicting the fundamental
rights guaranteed under Part III of the Constitution shall be deemed void to
the extent of such contradiction. It grants the judiciary the authority to invalidate
laws that are incongruent with fundamental rights.
- Article 32[26]:
Known as the "Right to Constitutional Remedies," this provision
endows individuals with the right to directly approach the Supreme Court
for the enforcement of their fundamental rights. It constitutes a
cornerstone of judicial review, empowering the Court to safeguard and
uphold constitutional rights.
- Article 226[27]:
This provision grants comparable authority to the High Courts to issue
writs for the enforcement of fundamental rights and for other purposes. It
offers an alternative avenue for individuals to seek recourse for
infringements of their rights.
These
constitutional provisions authorize the judiciary to scrutinize legislative and
executive actions and verify their compliance with the Constitution and
fundamental rights.
The
Supreme Court of India has played a pivotal role in shaping constitutional
jurisprudence through its exercise of judicial review. In the landmark case of Kesavananda
Bharati v. State of Kerala (1973)[28],
the Supreme Court delivered a historic ruling, affirming the doctrine of
"basic structure." It declared that while Parliament possesses the
authority to amend the Constitution, it cannot alter its fundamental framework.
This decision underscored the judiciary's role as the protector of the
Constitution and imposed constraints on the amending power of the legislature.
Similarly,
in the case of Indira Gandhi v. Raj Narain (1975)[29],
the Supreme Court reaffirmed its authority to scrutinize the actions of the
executive and uphold the rule of law. The Court annulled the election of then
Prime Minister Indira Gandhi on grounds of electoral misconduct, signaling its
readiness to hold even the highest office accountable. Through landmark
judgments and progressive interpretations of the Constitution, the Court has
broadened the scope of fundamental rights, safeguarded individual liberties,
and upheld principles of equality and justice. Its proactive stance in
defending constitutional values has earned it the moniker of the "guardian
of the Constitution."
Despite
its significance, judicial review in India has not been without its critics and
challenges:
- Judicial Activism
vs. Judicial Restraint[30]:
The judiciary, notably the Supreme Court, has
occasionally embraced judicial activism, surpassing its constitutional
mandate and intruding into the realms of the executive and legislature.
Consequently, debates have arisen concerning the appropriate equilibrium
between judicial activism and judicial restraint.
- Backlog of Cases[31]:
The Indian judiciary contends with a substantial backlog of cases, leading
to delays in the administration of justice. This backlog compromises the
efficacy of judicial review and presents a notable challenge to the rule
of law.
- Judicial
Independence and Accountability[32]:
Concerns have been raised regarding the independence and accountability of
the judiciary, particularly concerning the appointment process of judges
and allegations of judicial corruption. Ensuring the autonomy and
integrity of the judiciary is imperative for upholding public trust in the
institution of judicial review.
The
United States has been a trailblazer in the advancement and implementation of
judicial review, with its Supreme Court assuming a pivotal role in interpreting
the Constitution and shaping the trajectory of American democracy. The landmark
case of Marbury v. Madison (1803)[33]
is regarded as the cornerstone of judicial review in the United States. In this
case, Chief Justice John Marshall affirmed the authority of the Supreme Court
to scrutinize the constitutionality of laws enacted by Congress and executive
actions. Marshall famously proclaimed that it is "emphatically the
province and duty of the judicial department to say what the law is,"
thereby establishing the principle of judicial supremacy and the Court's
authority in constitutional interpretation.
Through
subsequent decisions, the Supreme Court further solidified its role as the ultimate
arbiter of constitutional disputes, shaping the contours of American democracy.
Cases such as McCulloch v. Maryland (1819)[34]
and Gibbons v. Ogden (1824)[35]
expanded federal power and affirmed the supremacy of the Constitution and
federal law over state laws.
In
the United States, the Supreme Court plays a vital role in interpreting the
Constitution and ensuring its alignment with the principles of democracy,
individual rights, and the rule of law. As the highest judicial authority in
the nation, the Court exercises the power of judicial review to evaluate the
constitutionality of laws, executive actions, and government policies. Guided
by principles such as originalism, textualism, and the living Constitution
theory, justices employ various interpretive methods to ascertain the original
intent of the Constitution's provisions and adapt its principles to
contemporary societal values and norms.
In
Brown v. Board of Education (1954)[36],
the Supreme Court invalidated racial segregation in public schools, asserting
that separate educational facilities are inherently unequal and contravene the
Equal Protection Clause of the Fourteenth Amendment. The Court's ruling in this
case marked a pivotal moment in the civil rights movement and underscored the
potency of judicial review in safeguarding individual liberties and advancing
equality.
Likewise,
in Roe v. Wade (1973)[37],
the Supreme Court recognized a woman's constitutional right to privacy and
determined that laws prohibiting abortion infringe upon the Due Process Clause
of the Fourteenth Amendment. The Court's decision legalized abortion nationwide
and ignited a contentious debate concerning reproductive rights, personal
autonomy, and the judiciary's role in shaping social policy.
The
discourse surrounding judicial activism versus judicial restraint has long been
a focal point of discussions regarding the appropriate role of the judiciary in
American democracy. Advocates of judicial activism contend that courts should
proactively interpret and enforce the Constitution to address urgent social
concerns and safeguard individual rights, even if doing so necessitates
deviating from precedent or legislative intent.[38]
Advocates of judicial restraint, conversely, argue that judges should proceed
with caution and defer to elected officials and traditional legal principles,
refraining from excessive involvement in policymaking and yielding to the
political branches whenever feasible.
This
debate is exemplified in cases such as:
- Bush v. Gore (2000)[39]:
The Supreme Court's involvement in the 2000 presidential election, which
effectively decided the outcome in favor of George W. Bush, ignited
controversy and reignited discussions regarding the appropriate boundaries
of judicial authority and the Court's role in adjudicating political
disputes.
- Citizens United v.
Federal Election Commission (2010)[40]:
The Court's ruling in Citizens United, which invalidated limitations on
corporate and union spending in political campaigns, elicited divided
opinions regarding the degree to which the judiciary should intervene in
issues pertaining to campaign finance and electoral regulation.
Unlike
nations with codified constitutions, the UK lacks a singular, written document
that functions as the supreme law of the land. Instead, its constitution
comprises an amalgamation of statutes, common law principles, conventions, and
treaties. This unwritten constitution, underscored by parliamentary
sovereignty, bears notable ramifications for the application of judicial
review. The judicial review process in the UK is chiefly regulated by the
Senior Courts Act 1981 and the Constitutional Reform Act 2005. The High Court
and the Court of Appeal possess jurisdiction to adjudicate judicial review
cases, with the latter serving as the ultimate appellate tribunal for the
majority of issues.[41]
Judicial
review in the UK has undergone centuries of evolution, with its origins dating
back to the prerogative writs issued by the King's Bench in medieval England.
The progression of administrative law principles, including ultra vires
(beyond the powers) and natural justice, established the foundation
for contemporary judicial review.[42]
The 20th century marked notable advancements in the application of judicial
review in the UK. The landmark case of Anisminic v. Foreign Compensation
Commission (1969)[43]
broadened the ambit of judicial review by affirming that errors of law
committed by public bodies could be subject to court scrutiny, regardless of
whether they purported to act within their jurisdiction.
In
R (Miller) v. Secretary of State for Exiting the European Union (2017)[44],
the UK Supreme Court ruled that the government could not trigger Article 50 of
the Treaty on European Union (the mechanism for initiating Brexit) without
parliamentary approval. The Court's decision upheld the principle of
parliamentary sovereignty and underscored the necessity of legislative
oversight in matters of constitutional significance.
Similarly,
in R (UNISON) v. Lord Chancellor (2017)[45],
the lawfulness of employment tribunal fees introduced by the government in 2013
was contested. The Supreme Court determined that the fees were unlawful as they
effectively obstructed access to justice and undermined the rule of law by
hindering individuals' ability to enforce their employment rights.
Judicial
review, serving as a mechanism for assessing the legality of governmental
actions, exhibits considerable variation across different legal systems. This
comparative analysis delves into the judicial review systems in India, the
United States, and the United Kingdom, elucidating disparities in approach,
scope, and constraints. Additionally, it scrutinizes the ramifications of
judicial review on democracy, governance, and the rule of law, extracting
lessons and insights from this comparative inquiry.[46]
- India:
In India, judicial review is entrenched in the Constitution and is
predominantly wielded by the Supreme Court and High Courts. The Indian
judiciary possesses broad authority to scrutinize legislative and
executive actions for adherence to constitutional provisions, especially
fundamental rights. Judicial activism and public interest litigation have
widened the purview of judicial review in India, enabling courts to
intercede in governance and social justice issues.[47]
- United States:
The United States boasts a longstanding tradition of judicial review, as
solidified in the landmark case of Marbury v. Madison (1803)[48].
The U.S. Supreme Court possesses the jurisdiction to evaluate the
constitutionality of laws and executive actions, construing the
Constitution and preserving individual rights. The adversarial legal
system and the principle of stare decisis (precedent) influence the
approach to judicial review in the United States.[49]
- United Kingdom:
Judicial review in the United Kingdom functions within the framework of
parliamentary sovereignty and the rule of law. Despite the absence of a
written constitution, the courts possess the authority to scrutinize the
legality of governmental actions and guarantee adherence to legal norms.
The principle of deference to administrative authorities and the doctrine
of parliamentary sovereignty shape the scope and methodology of judicial
review in the UK.[50]
- Approach:
India tends to feature a more activist judiciary, with courts often
intervening in issues of public policy and governance. Conversely, the
United States and the United Kingdom typically adopt a more restrained
stance, with courts showing deference to the political branches on matters
of policy.
- Scope:
The extent of judicial review fluctuates across jurisdictions, with India
boasting the broadest scope owing to its expansive interpretation of
fundamental rights. In the United States, judicial review encompasses
federal and state laws, whereas in the UK, it primarily centers on
administrative actions and adherence to statutes.
- Limitations:
Each judicial system encounters its distinct array of constraints. In
India, hurdles encompass judicial backlog and apprehensions regarding
judicial overreach. In the United States, critiques of judicial activism
and the susceptibility to partisan bias in judicial appointments are
prominent. In the United Kingdom, limitations arise from the lack of a
codified constitution and the doctrine of parliamentary sovereignty, which
could curtail the judiciary's capacity to invalidate laws.
Judicial
review serves as a cornerstone in upholding democratic principles by ensuring
governmental accountability, safeguarding minority rights, and mitigating the
abuse of power. It contributes to governance by fostering transparency,
legality, and fairness in administrative decision-making. Nonetheless,
excessive judicial intervention can disrupt the functionality of government
institutions. Judicial review reinforces the rule of law by subjecting
governmental actions to legal scrutiny and adhering to constitutional norms,
thereby cultivating a culture of legality and accountability within society.
Comparative
analysis underscores the significance of striking a balance between judicial activism
and restraint. While an activist judiciary can protect rights and advance
justice, it must also uphold the separation of powers and defer to democratic
processes. The efficacy of judicial review systems hinges on their adaptability
to cultural and legal contexts. What proves effective in one jurisdiction may
not necessarily be suitable for another, underscoring the necessity for
context-specific approaches to judicial review. Judicial independence emerges
as a critical component in ensuring the efficacy and legitimacy of judicial
review. Comparative analysis accentuates the imperative of safeguarding
judicial independence to uphold the integrity of the judiciary and reinforce
the rule of law.
Indeed,
while judicial review is indispensable for maintaining the rule of law and
safeguarding individual rights, it is not immune to challenges and criticisms.
Judicial
independence, the bedrock of a robust judiciary, faces persistent threats from
multiple quarters. Politicization of the judiciary, executive meddling,
budgetary limitations, and public assaults on judges present substantial
obstacles to judicial autonomy.
In
numerous nations, judicial appointments have become deeply politicized, with
governments endeavouring to manipulate the makeup of the judiciary to further
their political objectives. Executive intrusion in judicial rulings, whether
through coercive measures or efforts to undercut judicial independence,
undermines public confidence in the judiciary and erodes the rule of law.[51]
Budgetary
constraints can indeed undermine judicial independence by hampering the
effective functioning of courts. Inadequate funding for court systems can
result in delays in case processing, insufficient resources for judicial
training and education, and restricted access to justice for marginalized
communities.
Furthermore,
public assaults on judges, driven by political rhetoric or media
sensationalism, have the potential to erode public trust in the judiciary and
intimidate judges into rendering decisions based on popular sentiment rather
than legal principles.
Indeed,
budgetary constraints can compromise judicial independence by impeding the efficient
operation of courts. Insufficient funding for court systems can lead to delays
in case processing, a lack of resources for judicial training and education,
and limited access to justice for marginalized communities.
Moreover,
public attacks on judges, fueled by political rhetoric or media sensationalism,
can erode public confidence in the judiciary and intimidate judges into
rendering decisions influenced by public opinion rather than adhering to legal
principles.[52]
Critiques
of judicial overreach revolve around concerns that unelected judges may
overstep their constitutional authority by substituting their own policy
preferences for those of democratically elected lawmakers. This undermines the
democratic process and contravenes the principle of separation of powers.
The
counter-majoritarian difficulty, as articulated by Alexander Bickel,
underscores the tension between judicial review and democratic governance.
Bickel posited that judicial review places unelected judges in the position of
invalidating laws enacted by democratically elected representatives, thereby
thwarting the will of the majority. Critics of judicial overreach and
proponents of the counter-majoritarian difficulty argue that judges lack
democratic legitimacy and should exercise restraint in striking down laws
enacted by elected officials. They advocate for unelected judges to defer to
the political branches on matters of policy and limit their intervention to
cases where laws unmistakably violate constitutional principles.[53]
As
judicial review undergoes continual evolution in response to evolving legal,
political, and social landscapes, it is imperative to anticipate emerging
trends and contemplate strategies for fortifying this indispensable mechanism
in constitutional democracies.
- Protect
Judicial Independence: Preserving judicial
independence stands as paramount in ensuring the integrity and
impartiality of judicial review. Governments ought to abstain from
exerting undue influence on the judiciary and uphold the separation of
powers.
- Promote
Judicial Education and Training: Investing in
judicial education and training programs can bolster judges' ability to
adeptly adjudicate intricate legal matters and uphold constitutional
tenets. Continuous professional development guarantees that judges stay
current with evolving legal trends and adhere to best practices in
judicial review.
- Enhance
Access to Justice: Governments should prioritize
initiatives aimed at enhancing access to justice for all citizens,
especially marginalized and underserved communities. This encompasses
implementing measures such as legal aid programs, alternative dispute
resolution mechanisms, and leveraging technology to facilitate remote
court proceedings.
- Ensure
Transparency and Accountability: Transparency and
accountability serve as linchpins for upholding public trust in the
judiciary and the legitimacy of judicial review. Courts should embrace
transparent decision-making procedures, issue reasoned judgments, and be
subject to suitable oversight and review mechanisms.
- Embrace
Judicial Innovation: Embracing judicial innovation
holds the potential to augment the efficiency and efficacy of judicial
review processes. Courts should delve into the utilization of technology,
including artificial intelligence and data analytics, to streamline case
management, enhance legal research, and bolster the dispensation of
justice.
In
conclusion, judicial review remains a cornerstone of constitutional
democracies, serving as a bulwark against governmental overreach, safeguarding
individual rights, and upholding the rule of law. Despite facing challenges and
critiques, the ongoing evolution of judicial review presents opportunities for
enhancing its effectiveness and relevance in the 21st century. By embracing
emerging trends such as globalization, technology, and environmental justice,
judicial review can adapt to the evolving needs of society and continue to
serve as a potent force for advancing justice, equality, and accountability.
Protecting judicial independence, promoting access to justice, and fostering transparency
and innovation are crucial steps in strengthening the foundations of judicial
review and ensuring its continued vitality in safeguarding democratic values.
As
we navigate the complexities of governance and the demands of a rapidly
changing world, the principles of judicial review remain indispensable for
preserving the rights and liberties of citizens and maintaining the integrity
of democratic institutions. By adhering to the recommendations outlined above
and remaining steadfast in upholding the rule of law, constitutional
democracies can chart a course toward a future where justice and equality
prevail for all.
Vibhuti
Singh Shekhawat, Judicial Review in India: Maxims And Limitations, 55,
The Indian Journal of Political Science, 177, 180, (1994).
Annabelle
Lever, Democracy and Judicial Review: Are They Really Incompatible?, 07,
Perspectives on Politics, 805, 810, (2009).
B.
V. Harris, Judicial Review, Justiciability and the Prerogative of Mercy, 62,
The Cambridge Law Journal, 631, 642, (2003).
Paul
Craig, Ultra Vires and the Foundations of Judicial Review, 57, The
Cambridge Law Journal, 63, 69, (1998).
A.S.
Anand, Judicial Review - Judicial Activism - Need for Caution, 42, Journal of
the Indian Law Institute, 149, 153, (2000).
Edward
S. Corwin, Marbury v. Madison and the Doctrine of Judicial Review, 12,
Michigan Law Review, 538, 555, (1914).
Mohammad
Moin Uddin, Rakiba Nabi, Judicial Review Of Constitutional Amendments In
Light Of The "Political Question" Doctrine: A Comparative Study Of
The Jurisprudence Of Supreme Courts Of Bangladesh, India And The United States,
58, Journal of the Indian Law Institute, 313, 320, (2016).
Yuval
Eylon, Alon Harel, The Right to Judicial Review, 92, Virginia Law
Review, 991, 1004, (2006).
Saikrishna
B. Prakash, John C. Yoo, The origins of Judicial Review, 70, The
University of the Chicago law Review, 887, 890, (2003).
R.
V. Ramachandrasekhara Rao, Bases of Judicial Review, 03, Journal of the
Indian Law Institute, 293, 295, (1961).
[1] R. V. Ramachandrasekhara Rao, Bases
of Judicial Review, 03, Journal of the Indian Law Institute, 293, 295,
(1961).
[2] Ibid at 297.
[3] Saikrishna B. Prakash, John C.
Yoo, The origins of Judicial Review, 70, The University of the Chicago
law Review, 887, 890, (2003).
[4] Yuval Eylon, Alon Harel, The
Right to Judicial Review, 92, Virginia Law Review, 991, 1004, (2006).
[5] Ibid at 1005.
[6] 5 U.S. (1 Cranch) 137 (1803).
[7] 1973 AIR SC 1461.
[8] INDIA CONST. art. 19, cl. 1(a).
[9] INDIA CONST. art. 25.
[10] INDIA CONST. art. 21.
[11] R. V. Ramachandrasekhara Rao, supra
note 1.
[12] Mohammad Moin Uddin, Rakiba Nabi, Judicial
Review Of Constitutional Amendments In Light Of The "Political Question"
Doctrine: A Comparative Study Of The Jurisprudence Of Supreme Courts Of
Bangladesh, India And The United States, 58, Journal of the Indian Law
Institute, 313, 320, (2016).
[13] Ibid.
[14] Yuval Eylon, Alon Harel, supra note
4.
[15] Saikrishna B. Prakash, John C.
Yoo, supra note at 3.
[16] Ibid at 892.
[17] R. V. Ramachandrasekhara Rao, supra
note 1.
[18] U.S. (1 Cranch) 137 (1803).
[19] Edward S. Corwin, Marbury v.
Madison and the Doctrine of Judicial Review, 12, Michigan Law Review, 538,
555, (1914).
[20] U.S. (1 Cranch) 137 (1803).
[21] 347 U.S. 483 (1954).
[22] 410 U.S. 113 (1973).
[23] [2017] UKSC 5.
[24] 1973 AIR SC 1461.
[25] INDIA CONST. art. 13.
[26] INDIA CONST. art. 32.
[27] INDIA CONST. art. 226.
[28] 1973 AIR SC 1461.
[29] 1975 AIR SC 2299.
[30] A.S. Anand, Judicial Review -
Judicial Activism - Need for Caution, 42, Journal of the Indian Law Institute,
149, 153, (2000).
[31] Ibid.
[32] Mohammad Moin Uddin, Rakiba Nabi, supra
note 12.
[33] U.S. (1 Cranch) 137 (1803).
[34] 17 U.S. 316 (1819).
[35] 22 U.S. 1 (1824).
[36] 347 U.S. 483 (1954).
[37] 410 U.S. 113 (1973).
[38] A.S. Anand, supra note 30.
[39] 531 U.S. 98 (2000).
[40] 558 U.S. 310 (2010).
[41] Annabelle Lever, Democracy and
Judicial Review: Are They Really Incompatible?, 07, Perspectives on Politics,
805, 810, (2009).
[42] Paul Craig, Ultra Vires and the
Foundations of Judicial Review, 57, The Cambridge Law Journal, 63, 69,
(1998).
[43] [1969] 2 AC 147.
[44] [2017] UKSC 5.
[45] [2017] UKSC 51.
[46] Mohammad Moin Uddin, Rakiba Nabi, supra
note 12.
[47] Ibid at 318.
[48] U.S. (1 Cranch) 137 (1803).
[49] Ibid at 320.
[50] B. V. Harris, Judicial Review,
Justiciability and the Prerogative of Mercy, 62, The Cambridge Law Journal,
631, 642, (2003).
[51] Annabelle Lever, supra note
41.
[52] A.S. Anand, supra note 30.
[53] Vibhuti Singh Shekhawat, Judicial
Review in India: Maxims And Limitations, 55, The Indian Journal of
Political Science, 177, 180, (1994).
Article Information
DEMOCRATIC ANALYSIS OF JUDICIAL REVIEW: DEBATE ON JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT
Authors: CHERRY SINGHAL, VANSH CHADHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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