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A Comparative Study On Judicial Review In India And USA

Whenever the Legislature, Executive and Judiciary harms the constitutional values and denies the rights, which have been definite under the Constitution. The judiciary has an important role to play to protect the rights of people. It is the duty of the judiciary to keep different organs of the state within the limits of power conferred to them by the constitution. It is very important that the laws passed by the state are checked, whether they uphold the spirit of Constitutionalism or not.

All the branches of government shall be accountable and there shall also be a check up on them so that the rights of individuals are protected. 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

The most widely accepted meaning of Judicial Review is the Court's power to consider the constitutionality of acts of different organs of Government whenever the issue of the constitutionality of such acts is in question before the courts. Smith and Zurcher explained the concept of judicial review 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.[i]

The idea of Judicial review basically denotes the overseeing by the judiciary, of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the extent of powers drawn upon them by the Constitution.[ii]

The judiciary by using its power holds the legislative and executive organs within the purview of the constitution. Judicial review is a chief example of separation of powers in a modern governmental system, while this principle is interpreted differently in different jurisdictions, and also has different views on the hierarchy of different governmental norms. As such the procedure and scope of judicial review is different in nature from state to state.

The concept of Judicial review can be understood by analysing the different legal systems of different countries, like for instance in the United Kingdom which is a common law country, there is Parliamentary Supremacy, thus Judicial Review of Legislative Acts is not permitted. While in the United States of America Constitutional Supremacy prevails and the same goes with India, where the Doctrine of Separation of Powers has been held as the Basic Structure of Constitution and Constitutional Supremacy established, which permits the review of the legislative acts.

Evolution and origin of Judicial Review:
The seeds of this doctrine were sowed by the natural law theory propounded in Dr. Bonham's case in England while declaring an Act of the Parliament, which had put its seal on the Charter of the Royal College of Physics, as void. He asserted that When an Act of Parliament is against common law right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void[iii], but the theoretical foundation of the process of judicial review, that:
In case of a conflict between the Constitution and a legislative statute, the Court will follow the former, which is superior of the two laws, and declare the latter to be unconstitutional, was laid down by the judgment of Chief Justice Marshall of the United States Supreme Court in 1803, in Marbury v. Madison[iv].

Judicial Review in the USA:
There is no mention of the Judicial Review in any part of the US Constitution. The origin of judicial review in the USA is the result of a judicial decision and its protraction has been possible due to some conventions. In a series of important decisions, the Supreme Court under the leadership of Chief Justice John Marshall not only established the principle of judicial review of federal legislative action but also gave meaning to important structural Constitutional provisions, such as the Commerce Clause, that defined the respective spheres of competence of the states and the new federal government[v].

That it was not until the Marbury v. Madison case, the act of the congress extending to the court authority, which had not been granted by the constitution was declared invalid by the U.S. Supreme Court.

Judicial Review under Constitution of USA:
The United States is a federal state, with a national government and governments in each of the fifty constituent states. At the national level power is divided among three coequal branches: the executive branch headed by a president, who is head of state and government; the bicameral legislative branch with houses of basically coequal power; and the independent judiciary, which exercises judicial review.

Article III of the U.S. Constitution provides:
The judicial power of the United States which includes original, appellate jurisdiction and also matters arising under law and equity jurisdiction incorporates judicial power of Court.

Article VI of the Constitution USA provides:
All powers of government are exercisable only by the authority of the organ established by the Constitution. Thus Article VI incorporates The Constitution of the USA is the supreme law of the land.

While Judicial review is not expressly provided in the Constitution of the USA, it was formulated by the decisions of the Court. The Supreme Court of the U.S.A has the power to examine the acts of Congress and State Legislatures from devolving the essential legislative functions to the executive.

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 idea of judicial review was confirmed in Marbury v. Madison, that the courts have the last word in determining the constitutionality of legislation and the Court is the branch of government, which determines whether legislation is in conformity with the Constitution, become fundamental to the American theory and practice of constitutionalism.

Judicial Review in India
After India's independence from Britain in 1947. The Indian Constitution was drafted and came into existence on January 26, 1950. It is the longest written constitution in the world, while the Constitution of the United States of America is regarded as one of the oldest democratic written constitutions in the world and has also influenced the constitutions of other countries particularly those of Asian countries. India is no exception to this.

Though India has Westminster type of Government, yet since England has no written constitution, the members of Indian Constituent Assembly Shri B.N. Rau, who was the Constitutional Adviser to the Assembly and Sir Alladi Krishnaswamy Ayyar, in an effort to evolve a comprehensive written constitution for India, relied heavily on the Constitution of the U.S.A.

The case of Emperor vs. Burah 1877 was the first case which interpreted and originated the concept of judicial review in India, although Government of India Act, 1858 and Indian Council Act, 1861 had imposed several restrictions on the powers of Governor General in Council in evading laws, but there was no provision of judicial review, hence Emperor Vs Burah was first case where concept of judicial review was recognized in India, wherein court held that aggrieved party has a right to challenge the constitutionality of any legislative Act, which is enacted by the Governor General council exercising his power given to him by the Imperial Parliament and this was the case where the High court and Privy Council had upheld the view that Indian courts had power of judicial review with some limitations [vi].

Then in Annie Besant v. Government of Madras [vii] The Privy Council decided that there was a fundamental difference between the legislative powers of the Parliament and the authority of the subordinate Indian Legislature, and any enactment of the Indian Legislature which was in excess of the delegated powers or in violation of the limitation imposed by the imperial Parliament will be null and void.

Constitutional provisions of Judicial Review in India:
There was no specific provision of the Judicial Review in Government of India Act, 1935 and the constitutional problems arising before the court necessitated the adoption of Judicial Review in a wider perspective. Now, Constitution of India, 1950 explicitly establishes the Doctrine of Judicial Review under various Articles 13,32,131-136,143,226,227,245,246,372.

Article 13 and Power of Judicial Review
As per Article 13 of Indian Constitution all rules, regulations, ordinances, bye-laws, notifications, customs and usages are considered as Laws and if any of such laws are inconsistent or are contrary to any of the provisions of constitution, they can be declared ultra vires by the Supreme Court and by the High Courts. The justifiability of fundamental rights and the source of Judicial Review can be found under Article 13 which is regarded as a key provision as it gives teeth to the fundamental rights that cannot be infringed by the state either by enacting a law to that effect or through administrative action.

Judicial Review of Administrative Actions:
In India, Judicial Review is embodied in the Constitution and the subject can approach the High Court and Supreme Court for the enforcement of fundamental rights guaranteed under the Constitution. If the executive wing or the Government abuses its power or if the action of the government is mala fide, such action can be quashed by the ordinary courts of law. As a general rule, 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. In India, the court interferes with the discretionary powers exercised by the administration basically on two grounds which are failure to exercise discretion and excess or abuse of discretion.

Judicial Review of Constitutional Amendments:
The Supreme Court of India is the guardian of the Indian Constitution and time to time had to scrutinize the validity of constitutional amendment laws, The parliament has amending powers by which it can amend the provisions of the constitution but it cannot abrogate the basic structure of the constitution. and the question of whether fundamental rights can be amended under Art. 368, had been considered Supreme Court in 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.[viii]

While in Sajjan Singh v. Rajasthan[ix] once again the court revised its earlier view that constitutional amendments, made under Article368 are outside the purview of Judicial Review of the Courts. That it was in Golak Nath vs. State of Punjab[x] Supreme Court overruled the decision of Shankari Prasad and Sajjan singh's case and 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.

Finally in the famous case of Keshavananda Bharti vs. State of Kerela[xi], when the question as to what extent the state had amending power conferred by Article 368 of the Constitution. Wherein the court observed that Under Article 368 Parliament can amend the fundamental rights but cannot take or abridges the Basic Structure of the Constitution.

Current situation of Judicial Review in India
In the present scenario, the 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 Joseph Shine vs Union of India [xii] held that sec 497 of Indian Penal Code is unconstitutional.

Similarly Supreme Court of India in Navjot Singh Joher vs Union of India [xiii] where the constitutional validity of sec 377 was challenged on the ground that it violates fundamental rights. Justice Chandrachud observed that :
I am not bound by societal morality, I am bound by constitutional morality and if the constitution protects the interests of a single citizen of India I am bound to protect it.

As such Section 377 of Indian Penal Code was decriminalized and was held to be unconstitutional.

Anuradha Bhasin vs Union of India[xiv] The Union Territory of Jammu and Kashmir was directed by the Supreme Court to review all orders suspending the internet services forthwith, all orders not in accordance with law must be revoked. The Supreme Court observed that the Freedom of Speech and Expression, the Freedom to practice any Profession or carry on any Trade, Business or Occupation over the medium of internet, enjoys constitutional protection under Art 19 (1) (a) and Art 19 (1) (g). Any restriction upon such fundamental rights needs to be in consonance with the mandate under Art 19 (2) and Art 19 (6) of the constitution.

Judicial Review Comparison: India and USA
In the USA the Supreme Court has the power to declare any law unconstitutional on the ground of its not following due process of law. The Parliament and State legislature enjoys supremacy in their respective legislative fields and where Courts have no authority to question the wisdom or policy of the law duly made by the appropriate legislature and can reject a law only on the basis of it being unconstitutional.

The Supreme Court in India has several times refused to declare legislative actions of parliament as invalid on the ground that unless it can be shown that the natural, social or political rights of citizens are violated and such injustice was expressly prohibited by the Constitution it refused to interfere with legislative functioning.

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. While the term judicial review is not expressly mentioned in any of these Articles but they are implicit in these Articles. Whereas the Constitution of the United States of America doesn't have any specific provision for judicial review, Article III, IV, V incorporates judicial power of the Court, and constitutional supremacy and all the laws are subject to the Constitution, therefore, it is implicit in nature. Judicial review in United States of America is the formulation by court

The doctrine of Separation of Powers which is a dominant feature of the American Constitution, had helped the Supreme Court a great deal in this connection. In India the existence of a parliamentary government, which ensures the responsibility of the executive to the legislature and minimizes the possibilities of any conflict between the agencies of the government. However, the position of the judiciary in India is more or less the same and is similar, to a great extent, to that in the United States regarding constitutional interpretation.

To conclude, it is because judicial review the court's power has strengthened in the present scenario. The doctrine of Judicial Review of the United States of America was the pioneer of Judicial Review in other Constitutions of the world, which further evolved after the 18th century, while the Indian constitution was also greatly inspired. In India the concept of judicial review was founded on the principle of rule of law, the scope of judicial review is wider in India as compared to the United States of America.

Because the Constitution of the United States of America is very concise in nature and it is the most rigid Constitution in the world. Whereas the Indian Constitution although being rigid, it is flexible as well in nature, and also has detailed provisions making it the wealthiest Constitution in the world.

  1. Edward Conard Smith & Arnold John Zurcher , Dictionary of American Politics, Barnes & Nobel, New York, 1959, p. 212.
  2. S.P.Sathe, Judicial Activism in India, 2nd. Edition-,Oxford India Paper Backs, P.1.
  3. (1610) 8 Co. Rep.114
  4. 5 U.S. (1 Cranch) 137 (1803)
  5. Arthur T. von Mehran ,Peter L. Murray, Law in the United States, Cambridge University Press, 2 nd Edition, p.134.
  6. Emperor v. Burah, ILR, Calcutta, 63 (1877). 2
  7. (1916) ILR 39 MAD 1164 Mrs. Annie Besant v. The Government of Madras
  8. AIR 1951 SC 548
  9. AIR 1965 SC 845
  10. AIR 1967 SC 1643
  11. AIR 1973 SC 1461
  12. 2018 SCC OnLine SC 1676
  13. AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016
  14. 2020 SCC ONline SC 25

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