Open Access Research Article
COMPARATIVE ANALYSIS OF JUDICIAL REVIEW IN INDIA AND USA BY: PRATHAMESH DILIP AHINAVE
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Article Details
COMPARATIVE
ANALYSIS OF JUDICIAL REVIEW IN INDIA AND USA
AUTHORED BY: PRATHAMESH DILIP AHINAVE
LLM 1st Year, Semester 2
Roll No.: 75, Div – B, 2023-2024
Progressive Modern Law College, Pune,
SPPU
Abstract:
The researcher 1 in this
paper has done a comparative analysis of judicial review in countries like
India and USA. In this research the researcher will compare the role of judicial
review. Judicial Review is basically power of the court to review the actions
of the legislative, executive and judiciary. India has the longest written
constitution whereas USA has the shortest constitution.
The main object of the researcher is
to go on a comparative analysis of judicial review and elements related to it
in countries of India and USA. This paper offers an clear idea of the extent to
which U.S.A and India adhere to the judicial review in practice and also about
their differences that they both have.
Judicial review is an important thing
observed under any law and is an must thing in constitutionalism. It observes
the actions on all branches of law and hence this paper will describe the
roots, features, application, importance and scope with its purpose.
Keywords: Indian Constitution, Judicial Review,
India, USA, Comparative Study
Introduction:
Judicial Review acts as guardian to
protect the rights of citizens, one of the functions of judiciary is to ensure
that the laws passed by the legislature and the actions of executive are
competent and correct with the constitution.
Judicial Review is the power of the
Supreme Court or High Court to examine and look upon executive or legislative
act and to invalidate that act if it is contrary to constitution.[1]
Constitution gives such power and it can be seen and are incorporated in
Articles 13, 32, 131, 146, 226, 246, 251, 254, 372.
Article 32 is included in Part 3 of
Constitution of India as a fundamental right which enforces any fundamental
right given under Part 3. Mainly Article 226 and 227 are observed and given
prime importance by Courts in India when judicial review is to be seen.[2]
Judicial review with this article under constitution acts as a cornerstone to
Constitution looking upon actions of legislative and executive actions within
constitutional framework.
Judicial Review acts as a base to
courts for exercise their review jurisdiction over administrative action in the
interest of efficiency, fairness and accountability. This process, is inspired
by the US system tailored into Indian context.
Meaning Of
Judicial Review
Judicial
Review plays a vital role in Law or whole judicial system as whether a law
passed by the parliament, or any law enacted by a state legislature or any provision
in the constitution doesn’t violate provisions as to constitution it’s a power
conferred upon the n determining the constitutionality of the legislation, the
court is not concerned with the wisdom, experience or policy of legislation. Judicial Review means the power of the Supreme Court
(or High Courts) to examine the constitutionality of any law if the Court
arrives at the conclusion that the law is inconsistent with the provisions of
the Constitution, such a law is declared as unconstitutional and inapplicable.
The Constitution of India provides an independent judiciary that acts as an
guardian of the Constitution and protects the rights of citizens.[3] It’s an key function that
ensure that the laws passed by the legislature and the actions of the executive
are in line joined to the constitution. This in nutshell is Judicial Review.
And this is a very essential thing for the Indian Constitution.
Judicial Review so seen playing an important role in
constitution is an process inspired by the U.S system yet uniquely tailored to
Indian context serves as guardian to citizens rights and a ladder to fight
against arbitrary governance.[4] In this exploration, we go
deep into multifaceted nature of the judicial review, tracing into the history
and historical origins, understanding its big scope and appreciating its impact
on Indian and US Constitutions.
The
amending power of the Constitution is vested in the Legislature. Different
countries hold varying views with respect to judicial review of constitutional amendments.
Some countries argue that being political in nature, it is outside the purview
of judicial decisions.[5]
Whereas, others argue that even though it is a political question, it is the
duty of the judiciary to exercise its constitutional responsibility.
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.
History Of Judicial Review
In
the United States, the courts have the ability to scrutinize statutes,
administrative regulations, and judicial decisions to determine whether they
violate provisions of existing laws, or whether they violate the individual
State or United States Constitution. A court having judicial review power, such
as the United States Supreme Court, may choose to quash or invalidate statutes,
laws, and decisions that conflict with a higher authority. Judicial review is a
part of the checks and balances system in which the judiciary branch of the
government supervises the legislative and executive branches of the government.[6]
So in simpler words viewers, the concept of judicial review itself was
originated in the United States, where the Supreme Court established its
authority to strike down laws that were in violation of the US Constitution.[7]
In our country India, the concept of judicial review was borrowed from the US
Constitution, as it was an good concept that can also be applied in the Indian
context. US Constitution is one of the Sources of Indian Constitution. India
has adapted this concept to fit its unique constitutional and societal fabric.
This history and the journey reflect the India’s commitment and a promissory
feature to a dynamic and evolving judicial system that is capable of addressing
the complexities of such an diverse and popular democracy.
So
firstly, when we peek into the history of Judicial Review in India, we see a
case popular called as Shankhri Prasad Vs Union of India 1951 which was first
established by Supreme court and the power of judicial review was seen and
recorded. So, where it was held that the Constitution did not provide for any
limitation on the amending power of the Parliament.
Judicial
review is something that was admirable into Indian Context, it was praised by
many scholars and India being a diverse nation accepted the powerful tool.[8]
John Marshall, one of the most
powerful Chief Justices of the U.S. Supreme Court. Marshall’s decision in
Marbury v. Madison was supposed to have created the practice of Judicial
Review. However, it was eminent Historian Edward Corwin who rendered a concrete
explanation of the term “Judicial Review” as the power and duty of the Courts to
disallow all legislature or Executive acts of either Central or the State
Government.
Judicial
Review In U.S.A
The Constitution of America, which is written and also
democratic in its own and origin, is based on the Rule of law. It provides for
the separation of powers with checks and balances. One of the main thing
researchers thinks that the processes in the America to determine the validity
of law is Judicial Review.[9] USA in its constitution
does not provide express provisions for judicial review but it is incorporated
in the Articles 3 and 5. Judicial review is a positive barrier on popular
government and is a part of the Constitution Scheme of America. The
constitution is observed on a major role and also the Hans Kelson Grundnorm
theory was believed and given importance in USA. Alexander Hamilton intended the Supreme Court to have
the power to set aside the Congressional legislation. He suggested Independent
Judiciary as an excellent barrier to the encroachments and oppression of the
representative body.[10]
Article VI section 2: all treaties
made under the authority of the United States shall be the supreme law of the
land.
Article III section 2: “The judicial
power shall extend to all cases, in the law and equity, arising under this
Constitution, the laws of the United States, and the treaties made or which
shall be made, under this authority.”
In USA there is both federal
government and government of individual states. Which performs judicial review
at national level and its status got high.
In the United States,
there is both a federal government and the governments of the individual states.
The legislative branch, which consists of two chambers with roughly equal
authority, the executive branch, headed by a president, and the judicial
branch, which performs judicial review, all have equal status at the national
level In the United States, there is both a federal government and the
governments of the individual states. The legislative branch, which consists of
two chambers with roughly equal authority, the executive branch, headed by a
president, and the judicial branch, which performs judicial review, all have
equal status at the national level In the United States, there is both a
federal government and the governments of the individual states. The legislative
branch, which consists of two chambers with roughly equal authority, the
executive branch, headed by a president, and the judicial branch, which
performs judicial review, all have equal status at the national level
LANDMARK CASE OF MARBURY v. MADISON:
The power of judicial review was again used with judicial
authority to declare the Act of Congress unconstitutional in 1803 the historic
landmark case of Marbury v. Madison. When President John Adams did not win a
second term election in 1801, he utilized the last few days of his
administration to make a substantial number of political arrangements and
misused them, Researcher puts light on the point that, At the point when the
new president ‘Thomas Jefferson’ took the charge and office, he told his
Secretary of State - James Madison, not to give the official printed material
to the administration authorities who had been named by Adams.[11]
In this way, the administration authorities, including William Marbury, were
denied their new employment. Thus, William Marbury filed a writ petition of
Mandamus in the U.S. Supreme Court to compel which means to force somebody to do something.[12]
Judicial Review in India
The system of Judicial Review in
India too is not a one day implemented thing but it has a long evolution which
predominantly was based on the constitutional thoughts and ideas in the
different stages of the constitutional evolution of India. Rule of law plays a
vital role in the scope of judicial review. The basic idea of Judicial Review
is that law should be the generator of peace, happiness and harmony; the ruler
has no legal authority to inflict pain, torture and tyranny on the ruled and to
usurp the basic rights of freedom and liberty of people which are rooted in the
ancient Indian civilization and culture.
The ancient Indian concept of law is
that law is the king of kings, and nothing can be higher than law by whose aid
even the weak prevail over the strong. The Vedic concept of sovereignty was
that the State was a trust and the monarch was the trustee of the people. The
address of the people to the monarch at the time of coronations and the reply
of the consecrated king to his people on the occasion of Abhisheka (coronation)
embodied in the yajurveda reveals the concept of ideal, kingship and the
democratic concept of law and order which enshrined in the doctrine of Judicial
Review. Thus, the spirit of Judicial Review can be drawn from the fundamental
concept of law and governance which required ancient India.
The “Government of India
Act, 1858” and the “Indian Council Act, 1861” limited the powers of the
Governor General in Council to evade laws, However, there was no Judicial
review by the judiciary until Emperor v BurahIn this case,[13]
the court determined that an "aggrieved party" might seek a reversal.
Annie Besant v Madras Because the Privy Council established a distinct divide between the imperial Parliament and
the subordinate Indian Legislature, the Privy
Council decreed that any act carried out by the latter that went beyond the bounds
of the former's authority or that violated the limits of the former would be
deemed illegal.
The
Government of India Act, 1858 and the Indian Council Act, 1861 limited the
powers of the Governor General in Council to evade the laws, However, there was
no Judicial review by the judiciary until Emperor v Burah In this case, the
court determined that a "aggrieved party" might seek a reversal.
Annie Besant v Madras Because the Privy Council established a different divide
activity between the imperial Parliament and the subordinate Indian
Legislature, the Privy Council decreed that any act carried out by the latter
that went beyond the bounds of the former's authority or that violated the
limits of the former would be deemed illegal.
So observed Justice Patanjali Shastri
in State of Madras v. V.G. Rao, Justice Khanna, former judges of the Supreme
Court of India have in his book “Judicial Review or confrontation” made the
following remarks in this connection - Judicial Review has constitutional
system and a power has been vested in the High Court and the Supreme Court to
decide about the constitutional validity of the provision of the statutes.[14]
Both the Supreme Court and High
Courts exercise the power of Judicial Review. But the final power to determine
the constitutional validity of any law is in the hands of the Supreme Court of
India. Judicial Review can be conducted in respect of all Central and State
laws, the orders and ordinances of the executives and constitutional
amendments.[15] The
Supreme Court does not use the power of judicial review of its own. It can use
it only when any law or rule is specifically challenged before it or when
during the course of hearing a case the validity of any law is challenged
before it. Judicial Review in India is governed by the principle: ‘Procedure
Established by Law’. Under it the court conducts one test, i.e., whether the
law has been made in accordance with the powers granted by the Constitution to
the law-making body and follows the prescribed procedure or not. It gets
rejected when it is held to be violative of procedure established by law.
LANDMARK CASE OF SHANKARI
PRASAD V/S UNION OF INDIA:
Shankari Prasad vs. Union of India.[16] Here, the first Amendment Act of 1951
Researcher observed that the act was challenged before the Supreme Court on the
ground that the said Act abridged the right to property and that it could not
be done as there was a restriction on the amendment of Fundamental Rights under
Article 13 (2). The Supreme Court rejected the contention and unanimously held.
"The terms of Article 368 are perfectly general and empower parliament to
amend the constitution without any exception whatever. In the context of
Article 13 law must be taken to mean rules or regulations made in exercise of
ordinary legislative power and amendments to the constitution made in exercise
of constituent power, with the result that Article 13 (2) does not affect
amendments made under Article 368.
Justification of Judicial Review
India
In India
where a very large number of the supporters of Judicial Review do not accept
the arguments of the critics and the talks. They argue that Judicial Review is
an powerful tool and an very useful system for Indian liberal democratic and
federal system. It has been playing an significant and desired role in the
protection and development of the Constitution. Following are the points of
justifications
1) Judicial
Review is essential for maintaining the supremacy and significance of the
Constitution.
2) It
is essential for checking the possible misuse of power by the legislature and
executive.
3) Judicial
Review is a device for protecting the rights of the people which also fosters
the nation with growth and development.
4) No
one can deny the importance of judiciary as an umpire, or as an arbitrator
between the center and states for maintaining the federal balance.
5) The
grant of Judicial Review power to the judiciary is also essential for
strengthening the position of judiciary.[17]
It is also essential for securing the independence of judiciary. A formidable
fact which justifies the presence and continuance of the Judicial Review has
been the judiciousness with which it is being used by the Supreme Court and
High Courts for carrying out their constitutional obligations. These have used
it with restraint and without creating hindrances in the way of essential
socio-economic reforms.
U.S.A
1. A
thought on the whole issue will convince that the power of the judicial review
has not been abused by the Court. Moreover, the effect of judicial review has
not been very significant. In a period of about two hundred years or so, the
Supreme Court has invalidated only about a hundred laws out of about seventy
thousand laws passed by the Congress.
2. In
most of the nullified laws, only a part of the law concerned was declared
unconstitutional. This shows that the “incidence of judicial review of
congressional legislation has been extremely slight”.
3. In a
country having Separation of Powers and a political system in which the
executive is independent of legislative control and the legislature cannot be
dissolved earlier than the expiry of its term, the power of judicial review
constitutes the ultimate safeguard of individual liberty.
4. In
England the need for judicial review has not been felt because in that country,
the executive is responsible to the legislature and in case of difference
between the two, the will of the legislature prevails. Secondly, Great Britain
is not a Federation of States and hence, there is no rigid division of powers
between the centre ans states. The United States has a written constitution
wherein the citizens have been guaranteed some fundamental rights and the
states have been given separate and independent powers. Hence, the need for
judicial review in the United States is greater than in Great Britain.
5. Through
judicial review the Supreme Court has always continued to act as protector of
those rights which are guaranteed to individuals and minorities by the
Constitution. It has given decisions aiming to improve the status of the
Negroes in the country. The decision in the Brown vs. Boards of Education is a
great landmark, worth noting in this connection.
Critical Analysis On Judicial Review India Vs USA
1.
The scope of judicial review is narrower than
that of what does exist in USA but researcher puts focus on the fact that the
American Constitution does not mention the concept of judicial provisions in
any of its provisions.
2.
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.
3.
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.
4.
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.
5.
Thus, we see that the scope of Judicial
Review in India is somewhat smaller or inappreciable as compared to that in the
U.S.A.
6.
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.
7.
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 or the branches
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.
8.
The Indian Constitution is stringent and
flexible due to its length and many provisions. The Indian Constitution uses
specific language and vocabulary. The UK lacks a codified
constitution, limiting judicial scrutiny. India has three
types of judicial review. Changes to the Constitution, Laws, and
Regulations Can Be Challenged in Court, The Supreme Court can
evaluate any constitutionally-violating legislative or
administrative act. The UK courts can examine secondary legislation, but not
parliamentary legislation
Judicial
Review Cases - (U.S.A)
1. Weeks v. United States (1914):
Federal agents, suspecting Fremont Weeks was
distributing illegal lottery chances through the U.S. mail system, entered and
searched his home, taking some of his personal papers and documents with them.
The agents later returned to Weeks’ house to collect more evidence, and also
took the letters and envelopes from his drawers.18 [18]Although
the agents had no search warrant, seized items were used to convict Weeks of
operating an illegal gambling ring. The matter was brought to judicial review
before the U.S. Supreme Court to decide whether Weeks’ Fourth Amendment right
to be secure from illegal search and seizure, as well as his Fifth Amendment
right to not testify against himself, had been violated. The Court, in a
unanimous decision, ruled that the agents had unlawfully searched for, seized,
and kept Weeks’ letters. This landmark ruling led to the “Exclusionary Rule,”
which prohibits the use of evidence obtained in an illegal search in trial.
2. McCulloch v. Maryland :
Again, an historic case that’s related
to the expansion of judicial review in the United States.
Facts- In this case there was a
dispute regarding the powers of Federal law and State law. The facts of the
case that a bank was established by Federal law (by federal government.) named
Bank of America in the State of Maryland. Thereafter State of Maryland passed a
tax legislation which imposes the tax on bank in relation to relative
transaction. This was challenged on the ground that can State law imposes tax
on bank which was established by Federal law?
Held- It was held by the Court that
State cannot impose tax on Union authority; court creates immunity to the
National Government. According to this judgment US Supreme court formulate the
doctrine of Immunity of Instrumentalities” [19]
3. Miranda v. Arizona (1966) :
The history of modern-day Miranda
rights begins in 1963, when Ernesto Miranda was arrested for, and interrogated
about, the rape of an 18-year-old woman in Phoenix, Arizona.
During the lengthy interrogation,
Miranda, who had never requested a lawyer, confessed and later convicted of
rape and sent to prison. Later, an attorney appealed the case, requesting
judicial review by the Supreme Court, claiming that Ernesto Miranda’s rights
had been violated, as he never knew he didn’t have to speak at all with the
police.
The Supreme Court, in 1966,
overturned Miranda’s conviction, and the court ruled that all suspects must be
informed of their right to an attorney, as well as their right to say nothing,
before questioning by law enforcement. The ruling declared that any statement,
confession, or evidence obtained prior to informing the person of their rights
would not be admissible in court. While Miranda was retried and ultimately
convicted again, this landmark Supreme Court ruling resulted in the commonly
heard “Miranda Rights” read to suspects by police everywhere in the country.
4. Reed v. Town of Gilbert, Arizona :
The Supreme Court in the recent case
passed an ordinance concerned with Gilbert town which prohibits the display of
outdoor sign except some signs which are political signs which defined as
designed to influence the outcome of an election, and ideological signs which
defined as communicating ideas and another one directional sign which defined
as 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 exacting form of judicial
review and strict scrutiny. [20]
Court further held that content-based
law which are target speech based on its communicative content are presume to
be unconstitutional and may be justified only if the Government proves that
they are narrowly tailored to serve compelling State interests.
5. Virginia Board of Education v.
Bamette 319 U.S.624 (1943) :
"Local school boards may not remove books
from school library shelves simply because they dislike the ideas contained in
these books and seek by their removal to prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion." He also
cited Tinker v. Des Moines School District, 393 U.S.503 (1969), saying that
high school students have First Amendment rights in the classroom. Although the
schools have a right to determine the content of their libraries, they may not
interfere with a student's right to learn. Therefore, the schools may not
control their libraries in a manner that results in a narrow, partisan view of certain
matters of opinion. The Court stood against the removal or suppression of ideas
in schools.
Judicial
Review Cases - INDIA
1. Golaknath
v. State of Punjab (1967):
In this case, the Supreme Court held that the
Parliament did not have the power to amend the fundamental rights enshrined
in the Constitution.[21]
This decision was later overturned by the 24th Amendment to the Constitution,
which allowed the Parliament to amend any part of the Constitution, including
the Fundamental Rights.
2.
Sajjan Singh's case:
Here,
the competence of parliament to enact 17th amendment was challenged before the
constitution. Bench of five judges on the ground that it violated the
Fundamental Rights under Article 31 (A). Supreme court reiterated its earlier
stand taken in Shankari Prasad’s case and held, "when article 368 confers
on parliament the right to amend the constitution the power in question can be
exercised over all the provisions of the constitution, it would be unreason
about to hold that the word law' in article 13 (2) takes in amendment Acts
passed under article 368. Thus, until 1967 the Supreme Court held that the
Amendment Acts were not ordinary laws, and could not be struck down by the
application of article 13 (2).[22]
3. Vishaka
v. State of Rajasthan (1997):
In
this case, the Supreme Court recognized sexual harassment at the workplace as a
violation of the fundamental rights of women.[23]
The court laid down guidelines for employers to prevent and redress such
harassment at the workplace.
4. Keshavananda
Bharti Case:
Keshavananda Bharti case popularly known as
the Fundamental Rights case, decided by Supreme Court on April 24, 1973. The
question involved was, what is the extent of the amending power conferred by
Article 368 of the Constitution? On behalf of the Union of India it was claimed
that amending power is unlimited and short of repeal of the Constitution any
change may be affected. On the other hand, the petitioner contended that the
amending power was wide but not unlimited. Under Art. 368, Parliament cannot destroy
the ‘basic feature’ of the constitution. A special bench of judges was
constituted to hear the case. Out of 13 judges 11 complicated vague doctrine of
basic structure. According to the court, the power of the Parliament to amend
the constitution under Article 368 did not extend to abrogating or destroying
the basic features or framework of the constitution, what features were
considered by the Supreme Court as ‘basic’ were not spelt out or enumerated
consistently in the various opinions given in this case.[24]
The majority held that Article 368 even before the Twenty fourth Amendment,
contained the power as well as the procedure of amendment.
5. Minerva Mills case :
In
Minerva Mills case the Supreme Court by a majority decision has trunk down
section 4 of the 42nd Amendment Act which gave preponderance to the Directive
Principles over Articles 24, 19 and 31 of part III of the constitution, on the
ground that part III and part IV of the constitution are equally important and
absolute primacy of one over the other is not permissible as that would disturb
the harmony of the constitution.[25]
The Supreme Court was convinced that anything that destroys the balance between
the two part will Ipso Facto destroy an essential element of the basic
structure of our constitution.
CONCLUSION
The
Researcher went through many bibliographies and webliography where he went
through many aspects of judicial review consisting its meaning, history origin
traces, its concept, deep analysis, comparative study and case laws of judicial
review in major countries like India and USA.
Judicial
Review is a significant weapon to stop and eradicate the unconstitutional
exercise of power by branches of law legislative and executive. In conclusion, while judicial review is a crucial
aspect of the Indian Constitution, it has also been subject to criticism from
various quarters. Critics argue that it undermines the democratic process, and
this can lead to judicial overreach, and may be time consuming and expensive.
However, supporters of judicial review argue that it is necessary to protect
the fundamental rights of citizens and ensure that the government functions
within the limits set by the Constitution. Ultimately, the balance between
these two perspectives will depend on how well the judiciary can strike a
balance between protecting the Constitution and following the democratic
process.
While the scope of judicial review is quite broad, there are
certain limitations to this power, which are necessary to maintain a balance
between the three organs of the state – the legislature, the executive, and the
judiciary. Judicial review in India is narrower than that of what exists in USA
and its an obvious thing because the concept of judicial review was originated
itself in USA. Judicial
Review is one of the important techniques by which the courts examine the
actions of the legislature, the executive and the other governmental agencies
and decide whether or not these actions are valid and within the limits set by
the Constitution. Therefore, with the power of judicial review the courts act
as a custodian of the fundamental rights. Hence Judicial Review is a great tool
and must be used and applied where there is infringement of legal rights of the
people so as to act like a guardian to them.
When
comparative analysis was done by researcher, researcher found that The American
principle of judicial supremacy is also recognized in our constitutional
system, but to a limited extent. If proper utmost care is taken at the level of
taking the administrative decisions, there will be little scope for grievance
and invoking court’s jurisdiction. This will not only reduce the burden on
courts but will also create a sense of security and satisfaction in people
which is the essence of good governance and foundation of a welfare State.
Hence Judicial Review being an very vital an beneficial aspect in the overall
law and constitution, it is the duty to take in account Judicial Review an
mandatory aspect.
BIBLOGRAPHY AND WEBLIOGRAPHY
BIBLOGRAPHY
:
1).
The Establishment of Judicial Review.
2).
The Constitution of India.
3).
Judicial Review of Administrative Actions and Government Liability Sixth
Edition.
4).
Judicial Power and Judicial Review.
5).
Judicial Systems Of UK, USA, India.
6).
Shankhari Prasad Banam Bharat Sarkar (1951).
7). Basu DD,
Comparative Constitutional Law, Third Edition 2014
WEBLIOGRAPHY
:
1)
Raman, R.
(n.d.). A COMPARATIVE STUDY OF JUDICIAL REVIEW IN INDIA, THE UNITED STATES AND
THE UNITED KINGDOM. In LAW MANTRA THINK BEYOND OTHERS (Vol. 3, Issue
10). https://journal.lawmantra.co.in/wp-content/uploads/2016/04/18.pdf
2)
S.P.Sathe,
Judicial Activism in India, 2nd. Edition-,Oxford India Paper Backs, P.1.
3)
Arthur T.
von Mehran ,Peter L. Murray, Law in the United States, Cambridge University
Press, 2 nd Edition, p.134.
4)
A
comparative study on judicial review in India and USA. (n.d.). https://www.legalserviceindia.com/legal/article
7332-a-comparative-study-on-judicial-review-in-india-and-usa.html
5)
(1952) SCR 597 (1952) SCJ 253, AIR 1952 SC196
6)
Hindustan
Times, December 14,2000.
8)
http://archives.dawn.com/archives/67335,%2021.10.13
10) About the Supreme Court. (n.d.). United States
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Article Information
COMPARATIVE ANALYSIS OF JUDICIAL REVIEW IN INDIA AND USA BY: PRATHAMESH DILIP AHINAVE
Authors: PRATHAMESH DILIP AHINAVE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/15
- Issue 7
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International Journal for Legal Research and Analysis
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