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COMPARATIVE ANALYSIS OF JUDICIAL REVIEW IN INDIA, THE UNITED STATES, AND THE UNITED KINGDOM BY: ROHINI AKSHAY BHAPKAR
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"COMPARATIVE ANALYSIS OF JUDICIAL
REVIEW IN INDIA, THE UNITED STATES, AND THE UNITED KINGDOM"
AUTHORED
BY: ROHINI AKSHAY BHAPKAR
Class: LL.M
I (Sem II)
Roll No. 117
UNIVERSITY OF
PUNE, AT PUNE
PES MODERN
LAW COLLEGE GANESHKHIND, UNIVERSITY CIRCLE, PUNE DEPARTMENT OF LAW
ABSTRACT
This paper
presents a comparative analysis of judicial review in India, the USA, and the UK. Judicial review is a fundamental
component of the legal systems in these countries, allowing courts to review the actions of the
executive and legislative branches to ensure
they are consistent with the constitution. Despite sharing this common purpose,
the three countries have distinct approaches to judicial review, shaped by their
legal traditions, constitutional frameworks, and historical developments.
In India,
judicial review is based on the principle of constitutional supremacy, with the Supreme
Court empowered to strike down laws that violate the constitution. The Indian judiciary has played a proactive role in expanding the scope of judicial review
to protect fundamental rights and ensure governmental accountability.
In the USA,
judicial review is grounded in the doctrine of judicial supremacy, established by the landmark case of
Marbury v. Madison. The US Supreme Court has the authority to interpret the constitution and overturn laws that
are deemed unconstitutional. The American
system is characterized by a strong tradition of judicial activism, with the
courts playing a significant role in
shaping public policy.
In contrast,
the UK has a system of parliamentary supremacy, where the legislature is sovereign and can enact laws that cannot
be overturned by the courts. However, the UK has a long history of common law principles that allow for judicial
review of administrative actions to ensure
they are lawful, rational, and procedurally fair.
This paper
will compare and contrast the approaches to judicial review in these three countries, examining the scope of review,
the role of the judiciary, the standards of review applied, and the impact of judicial review on the respective
legal systems. By highlighting the similarities and differences, this comparative analysis
aims to deepen our understanding of the role of the judiciary in ensuring the rule of law and
protecting constitutional rights in diverse legal systems.
INTRODUCTION:
The concept of
judicial review is a cornerstone of modern legal systems, ensuring that the actions of the government are in accordance with the constitution. In the Indian
context, the emphasis on the "Supremacy of
Law" is paramount, highlighting the unique implementation of the doctrine of judicial review in the
Indian Constitution. Despite its significance, the importance of judicial
review in India is sometimes
overlooked, particularly by the government.
Judicial
review serves as a crucial mechanism for ensuring that all citizens are treated fairly by those in power. It is the
process by which a court determines the constitutionality of a statute based on precedent. If a statute
is found to be unconstitutional, the court issues a declaration of nullity, rendering the statute invalid. India's
commitment to the rule of law is evident
in its approach to judicial review. Historical cases, such as "Emperor v
Burah" and "Secretary of
State v. Moment," established the foundation for judicial review in
India, empowering courts to review
and potentially strike down laws that exceed the government's authority.
Comparatively, the United States
and the United Kingdom also have systems
of judicial review,
each with its own unique characteristics and historical development. Understanding the similarities and differences in the
approach to judicial review in these countries can provide valuable insights into the role of the
judiciary in upholding the rule of law and protecting citizens' rights.
Objective
To understand the concept
of judicial review.
To analyse the current
situation of Judicial Review
in India, the USA & UK.
To critically examine the system of judicial review
in the USA and in India
To examine the key difference between
judicial review in the US, UK and India.
Hypothesis:
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Origin
Of Judicial Review
The judicial
review basically originated in the USA. It was propounded for the first time in the historic landmark case of
Marbury vs. Madison 1803 by the leadership of John Marshall the chief justice of the American
Supreme Court. In which the power of the Supreme
court was established by limiting the power of the congressional by
declaring the legislation unconstitutional. In India, on the other hand, the constitution itself
confers the power of judicial
review on the judiciary both
the supreme court and high court1.
The concept of
judicial review was established early on, notably in the case of Dr. Bonham, where the Royal College of
Physicians in London barred Dr. Bonham from practicing
because he lacked a license. This case is significant for highlighting the
violation of the principles of natural justice
due to pecuniary bias, as the fine imposed on Dr. Bonham
for practicing without a license
would benefit both the king
and the college itself.
A landmark
case that further
solidified the concept
of judicial review
was Marbury v. Madison in 1803. This case arose when
President Adams, of the Federalist Party, appointed members of his party as judges on his last day in office, just
before Jefferson, an Anti- Federalist, assumed
the presidency. Jefferson, opposing these appointments, prevented James
Madison, the Secretary of State, from delivering the judges' commissions.
Marbury, one of the appointed judges,
petitioned the Supreme Court for a writ of mandamus to force Madison
to deliver the commissions. The Court, led by Chief Justice John Marshall, not only rejected Marbury's request but also
declared the act of Congress that granted the Court the power to issue such writs unconstitutional. This decision established the principle of judicial review, empowering the Supreme Court to
review and invalidate laws or actions that are
incompatible with the
Constitution2.
1 https://legalstudymaterial.com/judicial-review-a-comparative-analysis-in-usa-uk-and-india/ last
seen on 3/4/2024
2 https://blog.ipleaders.in/all-about-judicial-review/#History_of_Judicial_Review last seen on 3.4.2024
Judicial Review In India3
The Government
of India Act of 1935 did not explicitly include a clause for judicial review,
but due to constitutional complexities, a broader definition was required. The Constitution
of India, adopted in 1950, contains several articles that define and establish judicial
review, including Articles
13, 32, 131–136, 143, 226, 227, 245, 246, and 372. Article
13 guarantees the judicial examination of both new and old laws, inheriting key judicial review
concepts such as severability and eclipse.
The Doctrine
of Eclipse refers
to laws passed before the Constitution came into effect.
Article 13 declares that any pre-Constitution legislation conflicting
with Part III of the Constitution is
void. Initially, these laws were constitutional and binding, but Article 13 nullified
them. If the constitutional
ban is removed, the statute
is reinstated.
For example,
in the case of Bhikaji
Narain Dharkras v. State of M.P., a state law allowed governments to ban commercial motor
transport providers. However, a part of this law was declared null and void as of the Constitution's effective
date because it violated Article
19(1)(g) and could not be
justified under Article 19(6). The First Amendment Act of 1951 amended Article
19(6) to authorize government monopolies, making the previously unconstitutional act valid
and enforceable.
The Doctrine of Severability, based on
the phrase "to the extent of inconsistency" in Article 13, allows courts to strike down
unconstitutional sections of a statute while keeping the rest intact,
if possible. If invalid and valid portions
of a law are so intertwined that separating them is impossible, the entire provision
is deemed void. In A.K. Gopalan
v. State of Madras4, only Section
14 of the Prevention of Detention Act was ruled unconstitutional, not the
entire Act, because removing Section 14 did not affect the Act's purpose.
The doctrine of Prospective Over-ruling allows a court to reinterpret a previous judgment
to meet present needs
without binding the original parties or others bound by the precedent. This theory
creates a new rule of law for future situations while the old precedent still applies to past
occurrences. The Indian case of Golak Nath v. State
of Punjab5 advanced
this theory, which allows for the adaptation of laws to meet the evolving needs of
society.
Judicial
review in India refers to the power of a court to reject the enforcement of a law or government regulation that conflicts
with the Constitution of India, which is the highest law of the land. The Supreme Court of
India serves as the guardian of the Constitution. Following India's independence from Britain in 1947, the Indian
Constitution was drafted and came into effect on January 26, 1950. It is the world's longest
written constitution, and like the Constitution
of the United States of America, it has influenced the constitutions of other countries, particularly those in Asia6.
Shankari
Prasad v. Union of India7 was the first
case under the Indian Constitution. It involved the validity of the Constitution (1st Amendment) Act, 1951, which limited the "Right to Property" guaranteed by Article 31. The argument
against the validity
of the 1st Amendment was that Article 13 prohibits the
enactment of a law that violates or eliminates a fundamental right.
However, the Supreme Court rejected this argument and held that the power to amend
the Constitution, including the fundamental rights, is vested in Article
368. The Court ruled that the term
"law" in Article 13(2) refers only to an ordinary law enacted in the
exercise of legislative powers and
does not include a Constitutional amendment, which is enacted in the exercise
of constituent power.
Judicial Review
under the US Constitution8
In the United
States, there is a federal government as well as individual state governments. The federal government comprises the
legislative branch, consisting of two chambers with roughly equal authority, the executive branch headed by the
president, and the judicial branch responsible for judicial review.
At the national level, all three branches
have equal
6 https://legalstudymaterial.com/judicial-review-a-comparative-analysis-in-usa-uk-and-india/ last
seen on 3/4/2024
8 https://www.lawinsider.in/columns/analyzing-the-judicial-systems-of-u-s-a-u-k-and-india last seen on 1/4/24
status. The
judicial power of the courts is outlined in Article III of the United States Constitution, which grants federal courts
original, appellate, and jurisdiction over matters arising under law and
equity.
In both India and the US,
the Constitution is considered the "Supreme Law of the Land," and the judiciary acts as the guardian and interpreter of the Constitution.
India follows the
"Procedure Established by Law," while the US follows the "Due Process
of Law."
The original jurisdiction
of the Indian Supreme Court is limited to federal matters, whereas
its American counterpart has broader authority. In its appellate
jurisdiction, the Supreme
Court of India covers constitutional, civil, and criminal matters, while the US
Supreme Court is limited to
constitutional cases.
The Indian judicial
system has wide discretion to grant Special Leave to Appeal, which is not the case in the American judicial system9.
India's judicial system
has a provision for Advisory Jurisdiction, while no such provision exists in
the American judicial system.
The scope
of Judicial Review is limited
in India, while it is broader
in the USA.
Both India and the USA
have granted the judiciary the power of Judicial Review, which is not the case in
the UK judicial system.
Article VI of
the United States Constitution establishes that the Constitution itself is the supreme
law of the land. This means that all laws,
including those enacted
by Congress and the states, must comply with the
Constitution. While the Constitution does not explicitly mention judicial review, the concept has been
established through Supreme Court opinions, most notably in the case of Marbury v. Madison10.
In Marbury
v. Madison, the Supreme Court
affirmed its authority to review the constitutionality
of laws passed
by Congress and actions taken by the executive branch. This established the principle
of judicial review,
which allows the courts to invalidate laws or actions
that are found
to be unconstitutional. Judicial review
plays a crucial
role in maintaining the balance
of power between the branches of government and
ensuring that all branches adhere to the limits set by the Constitution.
The concept of
due process of law in the United States provides further protection against unconstitutional actions. Due
process ensures that individuals are treated fairly by the government and that their rights are protected. The courts have used the concept of due process
to nullify laws or actions that violate the rights guaranteed by the Constitution.
Overall, the
principle of judicial review, as established by the Supreme Court, along with the protection provided by due process of law, helps to safeguard against the potential
for an authoritarian
presidency and ensures that the government operates within the bounds of the Constitution. plaintiff from passing off relief to an infringement remedy.11
Judicial
Review In UK12
Judicial review
in the United Kingdom has a complex
history, rooted in the doctrine
of parliamentary
sovereignty. The concept of judicial review was established in England in the Dr. Bonham's Case in 1610, where Lord Coke
asserted the court's authority to review the
legality of parliamentary statutes. However, this idea was later
challenged in the case of City of
London v. Wood, where Chief Justice Holt famously stated that "An Act of
Parliament can do no wrong." This statement solidified the doctrine of parliamentary sovereignty, which holds that Parliament is the supreme
legal authority and that courts
cannot overrule its legislation.
In the UK, the
legal system is based on legislative supremacy, with Parliament having the ultimate authority to make and
change laws. Historically, there was limited scope for judicial review in the UK due to the doctrine
of parliamentary sovereignty. However, the
landscape
began to change with the formation of the European Convention on Human Rights and
the enactment of the Human Rights Act of 199813.
The Human
Rights Act incorporated the European Convention on Human Rights into UK law, requiring domestic courts to
interpret legislation in a way that is compatible with the Convention rights. This has
significantly expanded the scope of judicial review in the UK, allowing
courts to review
the compatibility of legislation
with human rights standards.
Despite these
developments, the principle of parliamentary sovereignty remains a fundamental aspect of the UK's constitutional democracy. Unlike many countries, the UK does not
have a written constitution, and parliamentary sovereignty is the foundation of
its legal system. This means that,
ultimately, Parliament has the authority to make or repeal any law, and courts
cannot invalidate legislation on the grounds of unconstitutionality14.
Judicial Review
In India, USA And UK- A
Comparison15
In India, the power of
judicial review can be applied in three dimensions: reviewing Constitutional Amendments, Legislative Acts, and Administrative Acts. In contrast, the US Constitution is rigid, leading
to rare reviews of Constitutional amendments. The US Supreme
Court can scrutinize Legislative and Administrative Acts that contradict the Constitution. In the UK, there is no scope
to review the validity of Legislative Acts of
Parliament, but secondary
legislations are subject to judicial review.
India's Constitution
contains specific and extensive provisions for judicial review in Articles
such as 13, 32, 131-136,
143, 226, 227, 246, and 372. Though
the term "judicial review" is not explicitly mentioned in these Articles, it
is implicit. In the US, judicial review is implicit in Articles IV and V, which incorporate the judicial power of the
13 https://www.legalserviceindia.com/legal/article-746-judicial-review-in-india.html
last
seen on 3/4/2024
14 https://www.legalpedia.co.in/articlecontent/judicial-review-a-brief-analysis.html last seen on 3/4/2024
Court and uphold Constitutional supremacy. In the UK, with its unwritten Constitution, judicial review
is not expressly provided for and
is at the discretion of the
Court16.
Article 13 of the Indian Constitution allows for the
judicial review of both pre- Constitutional
and post-Constitutional laws, a provision absent in the UK and USA. India's
courts have formulated various doctrines like severability and eclipse, which are also implicitly incorporated in the US.
However, in the UK, these doctrines are not applicable due to the absence of judicial review of legislative Acts.
Comparative Analysis : -
The Indian Constitution
came into effect on January 26, 1950, following the end of British rule in 1947. It is the world's
longest written constitution and one of the oldest written constitutions for self-governing nations, influencing
the constitutions of other countries,
especially in Asia. Members of the Indian Constituent Assembly, such as Shri B N Rau and Sir Alladi Krishnaswamy
Ayyar, looked to the US Constitution as a model for India's written constitution, despite England having no written constitution.
The Government of India
Act, 1858, and the Indian Council Act, 1861, limited the powers of the Governor General in Council to bypass laws.
However, judicial review was not
recognized by the judiciary until
Emperor v. Burah17. In this case, the
court ruled that an "aggrieved party" could seek redress. In Annie Besant
v. Madras, the Privy Council
established a clear distinction between
the imperial Parliament and the subordinate Indian Legislature, ruling
that any act by the latter exceeding its authority or violating the limits of the former would be illegal.
Constitutional Provisions for Judicial Review
in India :-
The Government of India Act, 1935, did not include
a provision for judicial review,
but constitutional issues
brought before the court compelled them to embrace judicial review in
a broader context.
16https://blog.ipleaders.in/judicial-review-administrative-rulemaking-powers-india-usa-comparative-study/last
seen on 3/3/24
Article 13 and the Power of Judicial
Review
Article 13 of the Indian
Constitution defines all laws as including rules, regulations, ordinances, bylaws, notifications, customs,
and usages. If any of these laws are contradictory or opposed to the
Constitution, the Supreme Court and High Courts can declare them ultra vires. Article 13 upholds fundamental rights
and forms the basis for judicial
review. It is crucial because it legally establishes that the state cannot
violate people's fundamental rights through legislation or executive orders.
Judicial Review of Administrative Actions
The Indian Constitution
allows for judicial review, enabling any citizen to petition the High Court or the Supreme Court to
uphold their constitutionally protected rights. Regular courts can overturn executive branch or government
actions that are illegal or unjust. While the judiciary
generally cannot overturn
decisions made by administrative officials within their discretion, the
court has authority over executive discretion in India based on a lack
of discretion or misuse of
judgment.
Judicial Review
of Constitutional Amendments
Parliament can amend the
Constitution's provisions but not its structure. In Shankari Prasad v. Union of
India18, it was decided
that basic rights cannot be altered under Article
368. Sajjan Singh v State of Rajasthan19 overruled
the court's previous decision that
Article 368 constitutional changes are outside judicial review. In Golak Nath v. Punjab,
the Supreme Court
ruled that a constitutional amendment
that breaches Article 13(2) is invalid. Keshavananda Bharti v. State of Kerala20 examined Article 368 amending power, establishing that
Parliament can change fundamental rights but
not the Constitution's framework under Article
368.
In Anuradha Bhasin v. UOI21, the
Supreme Court ordered
the Union Territory of
Jammu and Kashmir to review all decisions suspending internet services, reversing any orders found to be in violation of the law. The Supreme
Court held that Articles 19(1)(a)
and 19(1)(g) of the Constitution guarantee people's right to free speech and the right to engage in any lawful profession, trade,
business, or occupation over the internet. Any
limitations on these basic liberties
must comply with the requirements of Articles 19(2)
and 19(6).
Current State of
Judicial Review in India
Modern Supreme Court decisions are
highly regarded, and judicial review has become deeply ingrained in Constitutional Law. In the case of Joseph Shine v. Union of India22, it was decided that Section 497 of the Indian Penal Code
is unlawful. Another case, Navjot Singh Johar v. Union 23of India, challenged the
constitutionality of Section 377, leading to its
decriminalization as it was found
to violate basic rights.
Conclusion:-
Judicial review is crucial
for upholding constitutional values and enforcing
constitutional limitations. It ensures that government actions
adhere to the Constitution and the law. Strengthening judicial review can
protect individual rights and freedoms. While judicial review has faced
criticism for perceived judicial overreach, it remains essential
for maintaining the rule
of law and protecting individual and
collective rights.
India's
judicial review mechanism is more extensive than that of the U.S. and the U.K. Despite its concise nature, the Indian
Constitution's language and expressions are often vague and general. However,
it is strictly enforced. The Indian Constitution is both rigid and flexible
due to its extensive provisions. It uses precise language and terminology.
Unlike the U.K., which lacks a
codified constitution, limiting judicial oversight, India allows for three
types of judicial review. Courts in
India can review changes to the Constitution, laws, and regulations. In contrast, the stringent requirements
of the U.S. Constitution mean that it is rarely reviewed or amended. The Indian Supreme
Court has the authority to assess any legislative or administrative
act that violates the constitution. In the U.K., courts can scrutinize
secondary legislation, but not parliamentary legislation.
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Article Information
COMPARATIVE ANALYSIS OF JUDICIAL REVIEW IN INDIA, THE UNITED STATES, AND THE UNITED KINGDOM BY: ROHINI AKSHAY BHAPKAR
Authors: ROHINI AKSHAY BHAPKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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