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JUDICIAL REVIEW IN INDIA, USA AND UK: A COMPARATIVE STUDY
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BY - DHWANI NITIN NAIKWADI
ABSTRACT
Judicial Review is the
power vested in the court of law to review the actions of the Legislature, the Executive and the Judiciary. This power
is based on ‘Limited Government’ and ‘Supremacy
of the constitution wherein the ordinary law should confirm to it.’
Countries practicing constitutional
democracy emphasize constitutionalism. The judiciary protects the
Constitution and the rights of the
citizens from arbitrary actions of the legislature and Executive for which
the judiciary has assumed the onerous
role of a watchdog of the Constitution.
This article discusses
in detail about the concept of Judicial Review, Judicial Review in India
and further compares the concept of
Judicial Review in India to that of the United States of America and the United Kingdom.
INTRODUCTION AND MEANING OF JUDICIAL REVIEW
The term ‘Judicial
Review’ means the power of court to review the actions of the Legislature
and Executive. This power is a facet of
Rule of law. Judicial Review keeps a check on other organs of the government and hence helps to maintain
the Separation of power. The Judicial Review is
based on the principle of ‘Limited Government’ and ‘Supremacy of the
constitution’ as it declares laws
inconsistent with constitution as void and prescribes that the ordinary law
should confirm to constitution of the
country,
The concept of Judicial
Review and limited Government involve three main elements
Firstly there should be
a written constitution defining the scope and limitation of the organs of the Government. Secondly, there should be
supremacy of the Constitution whereby the other
organs should derive their powers from it. Thirdly, a deterrent by which
the violation of superior law should be
restrained or prevented or even annulled.
Though the legislature
has the absolute power to formulate law, it has to function within the limits prescribed by the Constitution. The
Constitution is considered as the Supreme law of the law and duty rests on the court to interpret
the Constitution in order to ensure no institution functions apart from its ambit by violating
fundamental rights of the individuals.
Whenever the
Legislature, Executive and Judiciary harms or denies the constitution the
rights, which have been mentioned under
the Constitution. Even though there must be separation of powers and all the branches of government are
to be held equally accountable, the judiciary has an important role to play to protect the rights
of people. It is crucial to keep check and balance of the laws passed by legislature, as to whether
they uphold the spirit of the Constitution. Hence, Judicial Review is a crucial weapon to create
checks and balances over the government's powers, in order to avoid arbitrary, unjust and
unconstitutional laws.
DEFINITION OF JUDICIAL REVIEW
The term Judicial Review
is explained by Smith & Zurcher as, “The examination or review by the Courts, in cases actually before them, of
legislative statutes and executive or administrative acts to determine whether or not they are
prohibited by a written Constitution or are in excess of powers granted by it, and if so, to declare
them void and of no effect.”
Judicial Review is the
duty as well as the power of the court to not allow any act- whether legislative or executive, if it violates the
constitution as defined by Edward S. Corwin.
Professor Wade defined
it as “Judicial Review is a mechanism adopted to keep public authorities within bounds and upholding the rule of law.”
ORIGIN OF JUDICIAL REVIEW
The roots of Judicial
Review grew by the natural law theory propounded in Dr. Bonham's case in England. The concept of judicial review was
then developed in the USA from the Marbury vs.
Madison case in 1803.
Soon after that, In the
early 1970 , Mauro Cappelletti mapped the spread of judicial review centered
constitutionalism across the world showing the beginning of its tenacious
spread across the globe alongside and as
part of the spread of democracy in the post-World War II.
And in India the concept
was taken from the Constitution of the USA. Dr B.R Ambedkar, Chairman of drafting Committee of the Indian
Constitution referred Judicial Review as the
“heart of Indian constitution”. The Indian constitution provides this
power through various
provisions which empower
the Hon’ble Supreme Court to review acts of other government organs.
JUDICIAL REVIEW UNDER THE INDIAN CONSTITUTION 1. HISTORICAL
BACKGROUND OF JUDICIAL REVIEW IN INDIA
The power of judicial
review in India was taken from the US Constitution which originated from the case of Marbury vs. Madison case in the
year 1803.
In 1877, Emperor v.
Burah was the first case which interpreted and originated the concept of Judicial Review in India. In this case the
High court and Privy Council adopted the view that Indian courts had power of Judicial Review
with some limitations.
In the case of Secretary
of State v. Moment , the court held that the Government of India cannot by legislation take away the right of the
Indian subject conferred by the Parliament Act i.e. the Government of India Act of 1858. Initially,
Government of India Act, 1935 had no specific
provision for Judicial Review, the constitutional problems arising
before the court necessitated adoption
of Judicial Review in a wider perspective.
2. JUDICIAL REVIEW UNDER INDIAN CONSTITUTION
The Indian constitution
provides this power impliedly under Articles 13,32,131, 136,143,226,227,245,246,372.
In India the concept of
Judicial Review is based on the Rule of Law.
Doctrine of Judicial
Review is the basic feature of the Constitution. Still there is no express provision for judicial review in the Indian
Constitution but it is an integral part of it.
The power of judicial
review has been provided in the Article 13 of the Indian Constitution. Article 13 of the Indian Constitution
prevents legislatures from making any law which “may take away or abridge the fundamental rights”
guaranteed by the Constitution. Any statutory law can be declared void if it is “inconsistent with
or in derogation of the fundamental rights”.
Constitutional basis of the judicial review has been provided by Article
13 as it confers with the
Supreme Court and the
High Courts, the power to interpret the pre-constitutional laws and to settle whether they match with the values and
principles of our present constitution.
Judicial Review is
provided in three aspects; Judicial Review of Constitutional Amendments, Judicial Review of Parliament and State
Legislation and also Judicial Review of Administrative actions of Executives. These aspect have been
summarized as follows:
i. Judicial Review of
Administrative Actions:
In India, an individual
can approach the High Court and Supreme Court for the enforcement of fundamental rights guaranteed under the
Constitution. If the executive or the Government abuses its power. If the action of the government is
mala fide, such action can be quashed by the
ordinary courts of law.
In India, the the
superior courts are empowered to interfere with the discretionary powers exercised by the administration basically on
two grounds which are
a. Failure to exercise
discretion and;
b. Excess or abuse of
discretion.
As a general rule of
Separation of Powers, courts have no power to interfere with actions taken by administrative authorities in the exercise
of discretionary powers. But this does not mean that there is no power of the court to control the
discretion of the administration. Judiciary has the power to review actions of all the other
bodies of government in order to maintain democracy and curb arbitrariness in the system.
ii. Judicial Review of
Constitutional Amendments:
The Supreme Court of
India is the guardian of the Indian Constitution and has authority to scrutinize the validity of constitutional
amendment laws. The parliament on the other hand, has power to amend the Constitution. Parliament
can amend the provisions of the constitution
undisputedly but it cannot abrogate the ‘basic structure’ of the
constitution. The question whether
fundamental rights can be amended under Art. 368, had been considered
Hon’ble Supreme Court in the case of
Shankari Prasad v. Union of India, wherein Court held that the power to amend
the constitution including the
fundamental rights is contained in Article 368, and that the word 'law'
in Article 13(2)
includes only an ordinary law made in exercise of the legislative powers
and does not include a constitutional
amendment which is made in exercise of constituent power.
Whereas, in the case of
Sajjan Singh v. Rajasthan the Hon’ble Supreme Court revised its earlier view that constitutional amendments, made
under Article 368 are outside the purview of Judicial Review of the Courts. It was in the case of
Golak Nath vs. State of Punjab, Hon'ble Supreme
Court overruled the decision given in the case of Shankari Prasad and
Sajjan singh and further observed that
an amendment is a law within the meaning of Article 13(2) which included
every kind of law be it statutory or
constitutional law, hence a constitutional amendment which contravenes Article 13(2) will be declared
void.
In the landmark case of
Keshavananda Bharati vs. State of Kerala, when the question as to what extent the state had amending power conferred
by Article 368 of the Constitution. The Hon’ble
Supreme Court observed that, under Article 368 Parliament can amend the
fundamental rights but cannot take or
abridge the ‘Basic Structure’ of the Constitution. Eventually, the court illuminated the concept of Basic Structure
case by case.
In the present scenario,
the Hon’ble Supreme Court plays a very crucial role in interpreting the constitutional provisions and in present
times the concept of Judicial Review became a
fundamental feature of the Constitutional Jurisprudence.
In the case of Joseph
Shine vs Union of India, Hon’ble Supreme Court used the power of Judicial Review and held that Section 497 of Indian
Penal Code is unconstitutional.
In this way, the Supreme
Court of India scrutinizes the validity of law through the Doctrine of Judicial Review.
JUDICIAL REVIEW IN USA
1. HISTORICAL BACKGROUND OF JUDICIAL REVIEW IN AMERICA
Dr. Bonham’s case is
said to be a great heritage to the American system of Judicial Review as well.
In 1803, the power of
judicial review was again used to declare the Act of the Congress unconstitutional in the historic landmark
case of Marbury v. Madison . In this case, when
President John Adams did
not win a second term in the 1801 Presidential Election, he utilized the last days of his administration to make a
substantial number of political arrangements. At the point when the new president took office, he
told his Secretary of State not to convey the official printed material to the administration
authorities who had been named by Adams. In this way the administration authorities, including William
Marbury, were denied their new employment.
William Marbury filed a petition in the U.S. Supreme Court for a writ of
mandamus, to compel Madison to convey
the commission. The main issue in the case was did the Supreme Court have original jurisdiction to issue writ of
mandamus?
Chief Justice Marshall,
held that it has no jurisdiction to issue Mandamus because for issuing writ of Mandamus, the court should have the
appellate jurisdiction. Further, the court held that Congress cannot expand the scope of the
Supreme Court’s original jurisdiction beyond the scope of Article III of the Constitution. The
Supreme Court has the authority to review acts of Congress and determine whether they are valid
or not. It is the inherent power of the Supreme
Court to determine the validity of any law. n. In this way, the Supreme
Court of US formulated the concept of
Judicial Review. This case provides the foundation of power of judicial review
to the Supreme Court to determine the
validity of any legislative action of Congress.
2. JUDICIAL REVIEW UNDER AMERICAN CONSTITUTION
The American
Constitution is written and federal democratic in spirit. It is also based on
the Rule of law. One of the fundamental
processes in America to determine the validity of law is Judicial Review. In the USA, the judiciary can check
the actions of Congress and the action of the
President, if it is contrary to the Constitution, then the judiciary can
declare it null and void. The Constitution
of the USA, like Indian Constitution, does not provide express provisions
for Judicial Review; it was formulated
by the decisions of the Court and is implicitly incorporated in the Art. III and IV.
Article III
Article 3 of US
Constitution, gives the Supreme Court judicial power over all cases arising
under the Constitution.
Article VI
Article 4 of US
Constitution provides that the Constitution is the “supreme law of the land”
and implies that other laws are only
valid when they are “made in pursuance” of the Constitution. When interpreted together, these Articles
strongly imply that the Supreme Court has the power of judicial review.
Under a clause in Section 13 of the Judiciary Act of 1789,
the Supreme Court received original jurisdiction over "writs of mandamus." These may be issued to
order a government official to comply with the law.
Furthermore, The concept
of due process of law had created a democratic balance in the USA, by declaring the laws enacted arbitrarily as
illegal laws. The 'due process' clause in the American jurisprudence has served the American
judiciary in its fight against the powerful executive and this is the clause which bestowed the power
of judicial review to the American judges.
The main objectives of
Judicial Review in USA are as follows:
To declare the laws
unconstitutional if they are contrary to the Constitution. To defend the valid
laws which are challenged to be unconstitutional.
To protect and uphold
the Supremacy of the Constitution by interpreting its provisions.
To check the action of
Congress and the State Legislature for them delegating the essential legislative functions to the executives or to
check Congress from delegating its legislative
function to the State Legislatures.
In 1996, Margaret Gilleo placed a sign in the yard of her
home,the sign said “Say No to War in the Persian Gulf, Call Congress Now.” The city of Ladue had a law
against yard signs, and told Ms. Gilleo to take her signs down.
The issue before court was whether the lawagainst signs was unconstitutional? Answering to which Supreme Court of America held that,
law against yard signs violated the 1st Amendment of the U.S.
Constitution. The 1st Amendment protects political speech, and banning yard signs takes away the main mode by which people
traditionally express their personal political views.
Currently, all content
based law in the USA has the backdrop of judicial review and strict scrutiny in the USA.
JUDICIAL REVIEW IN UK
1. HISTORICAL BACKGROUND OF JUDICIAL REVIEW IN UK
Dr. Bonham v. Cambridge
University , was the foundation of judicial review in England.
On the contrary to it,
in the case of City London v. Wood Chief Justice Holt said that “An Act of Parliament can do no wrong, though it may do
several things that look pretty odd”. This case
somewhat restricted the power of Judicial Review in the UK. The scope of
judicial review was restored in the
country after it became signatory to the European Convention of Human Rights.
2. JUDICIAL REVIEW UNDER LAWS IN UK
In the UK, there is no
written Constitution. Principle of “Parliamentary Sovereignty” dominates constitutional democracy in the UK. England
is a democratic country but not a republic. In
England, people are the source of all the powers and they are also the
sovereign power. But, people snatch all
essential powers from the Monarch who respond to them in Parliament.
This establishes the
Doctrine of Parliamentary Sovereignty which means that the court has no power to determine the legality of
Parliamentary enactments. The Act of the Parliament cannot be answerable to any authority howsoever
unjust it may be. There is unlimited power with
Parliament in the UK. There is no scope of judicial review of
legislative Act in the UK.
After the formation of
the European Convention of Human Rights, the scope of judicial review became wider. The enactment of the Human
Rights Act, 1998 also requires domestic Courts to protect the rights of individuals. The UK’s
membership of the European Community has brought with it significant changes to the English
legal system and the UK constitution. Like, in the Administrative Court:
Claimants may challenge
actions and omissions by English public authorities, and even provisions of an Act of Parliament, on the
ground of breach of Community law.
Mostly, claims for
judicial review may also be on the validity of administrative decisions
and legislations made by the
institutions of the European Union.”
In the UK the system
which is based on Legislative Supremacy and Parliamentary Sovereignty The legislative Act of Parliament is also
known as Primary Legislation, primary legislations are basically enacted by the Parliament Secondary
legislation provides rules, regulation, directives and act of Ministries. The delegation by the
Parliament to the executive with adequate legislative guidance are known as Secondary legislation,
which are administrative in nature; therefore it is subject to judicial review in the UK.
In, R v. Secretary of
State for Transport , it was observed by the Court that “by relying upon
the direct effect of Community law, the
individual may be able to challenge national measures and can declare them unlawful. Further, it was
observed that all national measures can be subject to judicial review on the grounds of
incompatibility with Community law, i.e. primary legislation, secondary regulations and administrative
decisions.”
Currently, The Courts in
the UK are strictly following the principles of judicial review with regard to administrative actions and
secondary legislations. So far as primary legislations are concerned, they are outside the purview of
judicial review but with some exceptional cases. Administrative actions which are executive in
nature are mostly the subject matter of judicial review in the present scenario
JUDICIAL REVIEW IN INDIA USA AND UK: COMPARATIVE
i.
i. Power to strike down laws
In India, the Supreme
Court has complete power to strike down any law, whether made by parliament or state legislature, if it does
not conform to Indian Constitution or is arbitrary and malafide.
In the USA, when
judicial review is applied to federal law, the Supreme Court can only
strike that law down if it directly
conflicts with the Constitution. When examining a state law, however, the court can strike it down if it
contradicts either federal law or the United States
Constitution. The
United States Supreme Court cannot strike down a state law for conflicting with the state’s constitution.
In the UK, the courts
cannot overturn or quash primary legislation passed by parliament. This is because, in the UK constitution, parliament
is sovereign. The courts can overturn secondary
legislation, made by ministers, on the normal grounds of judicial
review.
ii. Provisions for
Judicial Review
In India, there are
specific and extensive provisions of judicial review in the Constitution of
India such as Article 13, 32, 131-136,
143, 226, 227, 246, 372, the term judicial review is not expressly mentioned in any of these Articles
but they are implicit in these Articles.
USA as well has an alike
aspect, the Constitution of the United States of America doesn't have any specific provision for judicial review
but Article III, IV, V incorporates judicial power of the Court.
In the UK, as no written
constitution is present, there are no specific provisions for Judicial Review and it has a limited purpose.
iii. Dimensions of
Judicial Review
In Indian
context,judicial review can be used in three dimensions; judicial review
of Constitutional Amendments, judicial
review of Legislative Acts and Judicial Review of Administrative Acts.
In the USA, the
structure of functioning powers are rigid and hence review of Constitutional Amendments is very rarely used. The Supreme
Court of America has power to scrutinize the
Legislative act and Administrative Act which is contrary to the Federal
Constitution.
In the UK, courts don’t
have power to review Legislative acts of Parliament, secondary legislations are subject to review.
iv. Supremacy of
judiciary-
In countries like India
and USA, which have written Constitutions and Doctrine of Separation of Powers, power of judicial review is exercised
to uphold democracy of the nation and thus shows dominance of Judiciary.
Whereas in countries
like the UK, where the nation has an unwritten but a large and unitary in character Constitution, there supremacy of the
Parliament which ultimately results into
constraints in regards to judicial review. In the UK, the courts can
declare an act of parliament to be
incompatible with the constitution but their judiciary cannot invalidate the
law for being in accordance with the
constitution.
v. Power to exercise
Judicial Review
In India, power of
Judicial review is expressly mentioned under the Constitution by the law
markers as they were very well aware of the consequences otherwise. Hence,
Supreme Court in India has ample power
to overturn the legislative enactments, however the Supreme Court does not interfere into enacting the new laws, it
simply decides the matter and leaves the job of
enacting new laws on the legislature to ensure exercise of Separation of
Powers.
In the USA, power of
Judicial review is aggressively exercised, if a particular legislative enactment is found to be against the American
Constitution of Principles of Natural Justice, the Supreme court while declaring the same as
void, it is seen that the court enacts new provisions replacing the old.
While in the UK, power
of Judicial Review is limited and the court has limited powers of reviewing the laws passed by Parliament and
has no authority to declare such laws void.
CONCLUSION
The power of Judicial
Review is used differently in different political systems. Despite various shortcomings, Judicial Review has helped in
ensuring constitutional governments in countries. Through this power Supreme Courts have
protected the Rights and Freedoms of its citizens against any encroachment by legislature of
executives. However, the fact that the Judiciary is also established by the Constitution shall be
kept into consideration before using Power of
Judicial Review in an arbitrary manner. As Aharon Barak points out, “A
judge must maintain the delicate balance, something that requires some measure
of activism and some measure of
restraint.”
REFERENCES
1. Dr. S.R. Myneni
Comparative Constitutional Law, Allahabad Law Agency Publication. 2.
https://www.ijlmh.com/wp-content/uploads/2019/03/Judicial-Review-A-Comparative
Analysis-of-India-USA-UK.pdf
3.https://www.researchgate.net/publication/368461517_Judicial_Review__A_Comparative_Analysis_of_India_US_UK
4.
https://ijalr.in/volume-3/issue-2/judicial-review-a-comparative-analysis-of-india-the
united-states-and-the-united-kingdom-vartika-lal/
5. https://www.barandbench.com/columns/judicial-review-in-the-uk-lessons-for-india
6. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3788741 7.
https://ijcrt.org/papers/IJCRT2202375.pdf
Article Information
JUDICIAL REVIEW IN INDIA, USA AND UK: A COMPARATIVE STUDY
Authors: DHWANI NITIN NAIKWADI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/18
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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