ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Political Science teacher

who gave me the golden opportunity to do this wonderful project on the topic-
‘Comparative study of Judicial Review in the United States of America and India.’ Which
also helped me in doing a lot of research and I came to know about so many new thing.

I am really thankful to him.

Secondly I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

Yours Sincerely
 INTRODUCTION

Judicial review is the power of the courts of law to review the actions of the executive or the
legislative branches and annul those actions where it finds them incompatible with a higher norm.
It is the authority of courts to examine an executive or legislative act and invalidate that act if it is
contrary to constitutional principles. This concept has a long history and in due course of time has
become an essential feature of written Constitutions of many countries. It aims to balance the
entire system of governance, protect the basic rights of the people and establish a rule of law in
the society. Judicial review is firmly established in India and is a basic feature of the Indian
Constitution. Its growth is the inevitable response of the judiciary to ensure proper exercise of
powers by the State and prevent any violation of basic rights of the people. Judicial review is
however not a simple but highly complex and complicated system. It is interpreted differently in
different jurisdictions, which also recognize different hierarchy of legal norms. As a result, the
procedure and scope of judicial review differs from country to country due to different ideologies
and experience. Therefore students of law must have sufficient understanding in the subject. It is
for this reason that course contents have been developed so that the students may be able to
appreciate the concept, structure, procedure and operation of the institution of judicial review.
INDEX
Cases Referred
JUDICIAL REVIEW

One of the most important features of the judiciary is the power of judicial review.
Judicial review is the power of the Supreme Court and the High Courts to examine the
constitutionality of the Acts of the Parliament and the state legislatures and executive
orders both of the centre and state governments. If it is found that any of its provisions are
in violation of the provisions of the constitution, they can be declared unconstitutional or
ultra-vires of the constitution and a law declared by the Supreme Court as
unconstitutional cannot be enforced by the government.

According to Redform, “Judicial review is the power of a court to enquire whether a law,
executive order or other official action conflicts with written constitution and , if the court
concludes that it does, declare it unconstitutional and void”. One can find the basis for
judicial review in the writings of Alexander Hamilton, one of the framers of the American
constitution in 1789, in the ‘Federalist’. He wrote, “The interpretation of the laws is the
proper and peculiar province of the courts. 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.

The judiciary by using this power keeps the legislative and the executive organs within
the purview of the constitution. Judicial review is an example of the functioning of
separation of powers in a modern governmental system (where the judiciary is one of
three branches of government). This principle is interpreted differently in different
jurisdictions, which also have differing views on the different hierarchy of governmental
norms. As a result, the procedure and scope of judicial review differs from country to
country and state to state.

Judicial review could be understood in terms of two different legal systems – The Civil
Law System and the Common Law System OR by theories on democracy – the
Legislative Supremacy and the Separation of Powers theory. For instance in United
Kingdom which is a common law country, Parliamentary Supremacy has been established
and thus Judicial Review of Legislative Acts is not permitted. On the other hand in the
United States of America [the “US’], Constitutional Supremacy prevails. Similarly in
India the Doctrine of Separation of Powers has been held as the Basic Structure of
Constitution and Constitutional Supremacy established, permits the review of the
legislative acts as well.

Origin

The doctrine of judicial review is one of the invaluable contributions of the U.S.A. to the
political theory. Its origin has been the result of a judicial decision and its continuance has
been possible due to some conventions. The concept of judicial review was developed by
Chief Justice Marshall of the American Supreme Court in the famous Marbury v.
Madison case (1803). In this case Chief Justice Marshall laid down that the judiciary has
the power to examine the laws made by the legislature. It was also declared that if any
such law is found to be in violation of the constitution, then such a law would be declared
by the court as ultra-vires of the constitution. While doing so the Supreme Court referred
to Article VI, Section 2 of the Constitution.

Justice Samuel Chase observed in cooper v. telfair that despite some disagreement, “It is
indeed a general opinion, it is expressly admitted by all this bar, and some of the
[Supreme Court] Judges have, individually, in the circuits decided, that the Supreme
Court can declare an act of Congress unconstitutional, and therefore invalid…”

Objectives

Judicial review is important because laws passed need to be checked to make sure they
are constitutional. Judicial review is important because it allows the higher courts to
review the outcomes of the lower courts. It helps to check on the other branches of
government. The main importance of judicial review is to protect individual rights, to
balance government powers and to create and maintain equality to every person. The
system of civil liberties that we know of today would be very different without judicial
review.
Judicial Review as formulated by Chief Justice Marshall of the American Supreme
Court had a no. of objectives:

i. To uphold the principle of the supremacy of the Constitution.

ii. To maintain federal equilibrium i.e. balance between the centre and the states.

iii. To protect the fundamental rights of the citizens

Judicial Review in U.S.A

The US Constitution is the supreme law of the land. The Supreme Court has the power to
interpret it and preserve its supremacy by preventing its violations by the Congress and
the President. This provision has been the basis of the judicial review power of the
Supreme Court. “Judicial Review " is the principle and authority which give the Supreme
Court of USA the power to reject or abrogate any law which is made by Congress or
states. According to this power Supreme Court of USA reject or abrogate any law which
does not suit or conform to the constitution of USA or apposite the constitution of USA
or violate the Constitution It has come to be recognised as the most distinctive attribute
and function of the Supreme Court. As such, it can be said Judicial Review is the power
of the Supreme Court to determine the constitutional validity of federal and state laws
whenever these are challenged before it in the process of litigation. It is the power to
reject such laws as are held to be it ultra vires.

There is no clear mention of the Judicial Review power of the court in any part of the US
Constitution. Its origin has been the result of a judicial decision and its continuance has
been possible due to some conventions.

The U.S. Constitution does not mention judicial review. This power, however, was used
before 1787 by courts in several of the American states to overturn laws conflicting with
state constitutions. In 1789 the Congress of the United States passed the Judiciary Act,
which gave federal courts the power of judicial review over acts of state government.
This power was used for the first time by the U.S. Supreme Court in Hilton v. Virginia
(1796).
In 1803, the power of judicial review was used for the first time by the U.S. Supreme
Court to declare an act of Congress unconstitutional. Acting under the doctrine of Implied
Powers, the Supreme Court in its judgement in Marbury v. Madison case (1803),
admitted its existence and used it. In this case, Chief Justice John Marshall explained and
justified the exercise of judicial review to strike down an unconstitutional act of Congress
or states. While doing so the Supreme Court referred to Article VI, Section 2 of the
Constitution which reads, “This Constitution and the laws of the United States which
shall be made in pursuance thereof; and all treaties made or which shall be made under
the authority of the United States, shall be the supreme law of the land, and the judges in
every state shall be bound thereby, anything in the constitution or laws of any state to the
contrary notwithstanding.” This article of the constitution was taken to mean that the
judges have the power and duty to uphold the supremacy of the Constitution by not
allowing any federal or state laws to violate its provisions. While giving judgement in this
case, which involved an interpretation of the Judiciary Act 1789, Chief Justice Marshall
enunciated this doctrine and observed that “a written Constitution is superior to all other
acts of government made under it; and it is the sworn duty of federal judges to follow the
constitution and give effect only to constitutional law and determine which law prevails
where there is conflict. If a Congressional law conflicted with the Constitutional law, the
court was bound to uphold the Constitution as the highest law of land.” “Courts are to
respect the Constitution and the Constitution is superior to any ordinary Act of
legislature.” Since then the Supreme Court has been exercising this this unique power and
has declared a number of legislative powers null and void.

After the historic judgement in the Marbury v. Madison case, the Supreme Court has been
regularly using this power. After 1803, it was used only in 1857 in the Dred Scott case.
Till today nearly 100 Congressional statutes have been declared unconstitutional by the
Supreme Court. The Court has always refused to apply judicial review to political
questions.

Judicial Review is neither automatic nor mechanical. The bills passed by the Congress
and the state legislatures become operative the moment these become laws. These do not
automatically go to the court for judicial review. It is only when any law is specifically
challenged or when during the course of litigation in a case, the issue of the
constitutionality of any law arises that the conducts judicial review.

After the judicial review is conducted the Supreme Court can give 3 types of decisions.
These are as follows:

i. That the law is unconstitutional.

In this case, the law stands struck down and it ceases to operate form the date on which
the Supreme Court declares it invalid.

ii. That the law is constitutional and fair.

In this case, the law continues to operate as before without any change.

iii. That any part or some parts of the law are unconstitutional.

In this case, only the part or parts declared unconstitutional cease to operate and the rest
of law continues to operate. If, however, the part or parts declared unconstitutional are so
integral to the law that it cannot operate without them, the whole law becomes invalid.

Judicial review is done by a bench of the Supreme Court and not by a single judge. The
verdict is given by majority. Sometimes it is a majority of only a single judge.

Due process of law as the basis of judicial review

On the basis of the Fifth Amendment of the Constitution, the scope of judicial review has
become very vast. In one of its clauses, it has been laid down that “the Government
cannot deprive anyone of life, liberty or property without due process of law.” The term
“Due Process of Law” means that the life, liberty or property of the people cannot be
subjected to arbitrary and unfair limitations by the law or the executive or even by the
judges in the process of awarding punishments. In simple words, it stands for free and fair
trial for meeting the ends of justice. The Supreme Court has used this principle to
determine the validity of laws. The Supreme Court while conducting judicial review, tests
(1)as to whether the law has been made strictly in accordance with the provisions of the
Constitution or not; and (2)as to whether the law satisfies the ends of justice and meets
‘due process of law’ i.e. whether it is fair and just or not. The law is declared invalid if it
fails to satisfy either of these two tests.

Limitations on the Supreme Court in respect of Judicial Review

1) The Court does not conduct judicial review over political issues.

2) While declaring a law unconstitutional the Court has to assign reasons and specify the
provisions of the Constitution that it violates.

3) The Supreme Court conducts judicial review only in cases actually brought before it. It
cannot initiate the process of its own.

4) The law declared invalid ceases to operate for the future. The work already done on its
basis continues to be valid.

5) The Court has to demonstrate clearly the unconstitutionality of the law which is sought
to be declared invalid.

Judicial Review in India

The system of judicial review is also applicable in India. Although the term Judicial
Review has not been mentioned in the Constitution, the provisions of various Articles of
the Constitution of India have conferred the power of judicial review on the Supreme
Court. Accordingly the constitutional validity of a legislative enactment or an executive
order may be challenged in the Supreme Court on the following grounds –

1. Violation of fundamental rights.

2. Outside the competence of the authority which has framed it.

3. It is repugnant to the Constitutional provisions.

The Supreme Court considerably widened the scope of judicial review in India through its
judgement in Maneka Gandhi’s case. In this case, the Supreme Court accepted the
concept of natural justice as one essential component of law thereby importing the
American concept of ‘due process of law’ into our Constitution.
In the case of Charanjit Lal v. The Union of India, Justice Mukherjee observed: “The
court should prima facie lean in favour of constitutionality and should support the
legislation if it is possible to do so on any reasonable ground.” In pursuance of this
attitude the Supreme Court of India has enunciated the doctrine of severability, which
implies that only those portions of the law are declared as void which are inconsistent
with the provisions of the Constitution and the rest of the law is permitted to operate. The
Courts in India have exercised power of judicial review with great restraint and attached
more importance to the express words of the Constitution rather than the spirit of the
Constitution.

Judicial Review under the Constitution of India stands in a class by itself. Under the
Government of India Act of 1935, the absence of a formal Bill of Rights in the
constitutional document very effectively limited the scope of Judicial Review power to an
interpretation of the Act in the light of the division of power between the centre and the
units. Under the present Constitution of India the horizon of judicial review was in the
logic of events and things, extended appreciably beyond a ‘formal’ interpretation of
‘federal’ provisions.

The debates of Constituent Assembly reveal, beyond any dispute, that the judiciary was
contemplated as an extension of the Rights and an ‘arm of the social revolution’. Judicial
Review was accordingly, desired to be an essential condition for the successful
implementation and enforcement of the Fundamental Rights. Members of Constituent
Assembly were agreed upon one fundamental point that Judicial Review under the new
Constitution of the U.S.A., where the doctrine was more an ‘inferred’ than a ‘conferred’
power and more implicit than ‘expressed’ through constitutional provisions.

In the Report of the abhor Committee of Supreme Court, it was recommended that “a
Supreme Court with jurisdiction to decide upon the constitutional validity of acts and
laws can e regarded as a necessary implication of any federal scheme”. This was
eventually extended to an interpretation of the laws and executive orders on the
touchstone of the Fundamental Rights. In the Draft Constitution of India, this power of
Judicial Review in relation to fundamental rights found formal expression in Art. 8 (2)
and Art. 25 (1) & (2) which, when adopted by the nation’s representatives in the
Constituent Assembly on November 26, 1949, became the new Arts. 13 (2) and 32 (1) &
(2), respectively, under the Constitution of India.

However there was a sharp controversy among the members of the Constituent Assembly
over the perpetually veered question of reconciling the conflicting concepts of the
individuals’ fundamental and basic rights and the socio-economic needs of the nation.

As a result Judicial Review, which was recognized as the basic and indispensable
precondition for safeguarding the rights and liberties of the individuals, was sought to be
tempered by the urge for building up a new society based on the concept of welfare and
social righteousness. The consequence was a drastic curtailment of the power of judicial
Review of the Supreme Court of India. The overriding need for ‘security of the State’
consequent on the partition of India and its after-math, and growing fissiparous and
subversive tendencies, merely provided further impetus to the process and made it a fait
accompli. What happened as a result was that the much debated ‘Due Process Clause’,
which was previously inserted in the original Draft Constitution, became the “first
casualty”, and was eliminated from the purview of the Rights to Personal Liberty. Under
Art. 21 of the new Constitution of India, it was replaced by ‘except according to
procedure established by law’, and in Art. 31 (1) it was substituted by ‘save by authority
of law.’

Simultaneously with this ‘new awakening’, a cluster of provisions was incorporated into
the constitutional document so as to restrict the rights envisaged in Arts. 19, 21, and 31,
and reduce the Supreme Court’s power of Judicial Review to one of ‘formal’ review. Lest
Judicial Review stood in the way of social and economic progress, the door was kept
wide open, through a comparatively flexible amending procedure, to impose the ultimate
will of the popular representatives in the matter of removing constitutional limitations.

Constitution has been working for about 60 years since it is adopted, but it is indeed very
difficult to make a correct appraisal of the course and development of Judicial Review,
and its specific directions and tendencies.

The foundation of the Indian Supreme Court’s Review-power was laid firmly and well in
the case of A.K. Gopalan v. State of Madras. This case not only elucidated the principle
of Judicial Review and the basis on which it would rest in future, but at the same time
evolved a set off guidelines which would eventually set the pattern for the fundamentals
of judicial approach to the Indian Constitution. Form ‘Gopalan’ to ‘Golaknath’ is, indeed,
a long march, not only in respect of the nature and scope of Judicial Review itself, but in
regard to the impact and consequences of such Review on the attainment of social
objectives, too.

These two cases represent two distinct lines of judicial thinking, two distinct tendencies,
and, also two separate sets of social philosophy. One represents a halting, over-cautious
and tradition-bound attitude of the judiciary in restricting its own freedom of action by
sticking to the express phraseology of the Constitution, scrupulously avoiding the nations
of ‘Natural Justice’ and ‘Due Process’, and construing the law in favour of the legislature;
the other represents a big, bold, and almost revolutionary effort to resurrect Judicial
Review by expanding its horizon beyond a literal interpretation of the Constitution,
introducing novel concepts like ‘prospective overruling’ and convening a Constituent
assembly to amend the Fundamental Rights, and by prohibiting any legislative
amendment of Fundamental Rights in future. The ‘Gopalan’ decision, while restricting
the ambit of the individual’s rights to freedom and personal liberty, paved the way to the
realization of the social objectives by its clear enunciation of the principle of judicial
subordination to legislative wisdom and discretion, and by its emphasis on social control
of individual liberties. The ‘Golaknath’ case, while trumpeting the individuals’ basic
liberties as sacrosanct and transcendental, has indeed, made it almost impossible to enact
social welfare legislation.

The Supreme Court of India has used the power of judicial review in various cases. We
may refer to the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy
Purses Abolition case (1971), the Keshwananda Bharti case (1973), the Minerva Mills
case (1980) and so on. However while exercising the power of judicial review, the
Supreme Court has never adopted the American practise as it is.

One of the most significant cases decided by the Supreme Court was Golakhnath case of
1967in which the Supreme Court held that the Parliament has no right to abridge or
abrogate the Fundamental Rights granted by the Constitution through an amendment of
the Constitution. Thus it made the Fundamental Rights transcendental and superior to the
constituent power of the Parliament through its power of judicial review. The Supreme
Court continued this attitude in the Bank Nationalisation and Privy Purses cases and
challenged the right of the Parliament to curtail the fundamental rights by the Parliament.
This attitude of the Supreme Court obliged the Congress Government to effect 24th, 25th
and 26th amendments in the Constitution. It also made a bid to curtail the right of the
Supreme Court to declare a law affecting Fundamental Rights under article 14, 19 and 31
as void of the law was passed to give effect to the Directive Principles under Article 39
(b) or (c). These amendments were challenged in the Keshwanand Bharati case.

During the emergency a bid was made to restrict the scope of judicial review through the
Forty-Second Amendment. The power to determine the constitutional validity of the
central laws was exclusively vested in the Supreme Court and the High Courts were
deprived of their right in this regard.

The Janata Government on assumption of power made a bid to restore the powers which
were taken away from the judiciary during the emergency.by the Forty-Third Amendment
passed in December 1977 it restored to the Supreme Court pre-emergency position with
regard to power of judicial review over the laws passed by the Parliament as well as the
State Legislatures.

As a result of the Supreme Court judgement of March 1994 in the case of S.R.Bommai
and others v. The Union of India, also known as Assembly dissolution case, the scope
of judicial review was further widened. In recent years the judiciary has further widened
his field of operation by declaring ‘judicial review’ as a basic feature of the Constitution.
Thus the Supreme Court in India has not merely interpreted the language of the
Constitution but also pronounced on issues which involve matters of policy.

Constitutional Provisions for Judicial Review:

The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution.
Parliament is not supreme under the Constitution of India. Its powers are limited in a
manner that the power is divided between centre and states.Moreover the Supreme Court
enjoys a position which entrusts it with the power of reviewing the legislative enactments
both of Parliament and the State Legislatures. This grants the court a powerful instrument
of judicial review under the constitution.
Both the political theory and text of the Constitution has granted the judiciary the power
of judicial review of legislation. The Constitutional Provisions which guarantee judicial
review of legislation are Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitution legislation.

Article 13 declares that any law which contravenes any of the provisions of the part of
Fundamental Rights shall be void.

Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights
to the Supreme and High Courts.

Article 251 and 254 states that in case of inconsistency between union and state laws, the
state law shall be void.

Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining to
the State List.

Article 245 states that the powers of both Parliament and State legislatures are subject to
the provisions of the constitution.

The legitimacy of any legislation can be challenged in the court of law on the grounds
that the legislature is not competent enough to pass a law on that particular subject matter;
the law is repugnant to the provisions of the constitutions; or the law infringes one of the
fundamental rights.

Articles 131-136 entrusts the court with the power to adjudicate disputes between
individuals, between individuals and the state, between the states and the union; but the
court may be required to interpret the provisions of the constitution and the interpretation
given by the Supreme Court becomes the law honoured by all courts of the land.

There is no express provision in our constitution empowering the courts to invalidate

laws, but the constitution has imposed definite limitations upon each of the organs, the
transgression of which would make the law void. The court is entrusted with the task of
deciding whether any of the constitutional limitations has been transgressed or not.
Constitutional Amendments and the Use of Judicial Review:
Until 1967, the Supreme Court upheld that the Amendment Acts were not ordinary laws
and could not be struck down by the application of Article 13 (2).

It was in the famous Golak Nath Vs. the state of Punjab case in 1967, where the
validity of three constitutional amendments (1st, 4th and 17th) was challenged, that the
Supreme Court reversed its earlier decision and uphold the provision under article 368
which put a check on the Parliament’s propensity to abridge the fundamental Rights
under chapter III of the Constitution.

In the Kesavananda Bharti Vs. State of Kerala case in 1973, the constitutional validity
of the twenty-fourth, twenty fifth and twenty ninth amendments was challenged wherein
the court held that even though the Parliament is entitled to amend any provision of the
constitution it should not tamper with the essential features of the constitution; and that
Article 31c is void since it takes away invaluable fundamental rights.

The court balances the felt ‘necessities of the time’ and ‘constitutional
fundamentals’ when scrutinizing the validity of any law. H.M. Seervai has
enumerated some of the canyons, maxims and norms followed by the court:
1. There is a presumption in favour of constitutionality, and a law will riot be declared tin
constitutional unless the case is so clear as to be free from doubt; and the onus to prove
that it’s unconstitutional lies upon the person who challenges it.

2. Where the validity of a stature is questioned and there are two interpretations, one of
which would make the law valid, and the other void, the former must be preferred and the
validity of the law will be upheld.

3. The court will not decide constitutional questions if a case is capable of being decided
on other grounds.

4. The court will not decide a larger constitutional question than is required by the case
before it.
5. The court will not hear an objection as to the constitutionality of a law by a person
whose rights are not affected by it.

6. Ordinarily, courts should not pronounce on the validity of an Act or part of an Act
which has not been brought into force, because till then the question of validity would be
merely academic.

7. In a later case, the Minerva Mill case, the Supreme Court went a step ahead. The 42nd
Constitutional Amendment of 1976 among other things had added a clause to Article 368
placing a constitutional amendment beyond judicial review. The court held that this was
against the doctrine of judicial review, the basic feature of the Constitution.

Judicial Review in India and USA : Comparison

The scope of judicial review in India is narrower than that of what exists in USA, though
the American Constitution does not explicitly mention the concept of judicial review in
any of its provisions.

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.

Moreover, it has also been seen that in USA, if a law is rejected by the Supreme Court
then the court will make a new law in its place. Although law making is not the
responsibility of the judiciary, the judiciary makes laws. Such judge-made laws are very
common in USA. But in India if a law is rejected by the Supreme Court, the Court leaves
the matter of making new laws to the legislative. This has also been described as Judicial
Activism by some of the constitutional experts.

The American Constitution provides for ‘due process of law’ against that of ‘procedure
established by law’ which is contained in the Indian Constitution. The difference between
the two is: the ‘due process of law’ gives wide scope to the Supreme Court to grant
protection to the rights of its citizens. It can declare laws violative of these rights void not
only on substantive grounds of being unlawful, but also on procedural grounds of being
unreasonable. Our Supreme Court, while determining the constitutionality of a law,
however examines only the substantive question i.e., whether the law is within the powers
of the authority concerned or not. It is not expected to go into the question of its
reasonableness, suitability or policy implications.

The American principle of judicial supremacy is also recognised in our constitutional

system, but to a limited extent. Nor do we fully follow the British Principle of
parliamentary supremacy. There are many limitations on the sovereignty of the
Parliament in our country, like the written character of the Constitution, the federalism
with division of powers, the Fundamental Rights and the Judicial Review. In effect, what
exists in India is a synthesis both, that is, the American principle of judicial supremacy
and the British principle of parliamentary supremacy.

The scope of 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.

It must, however, be conceded that the American Supreme Court has consumed its power
to interpret the constitution liberally and has made so thorough a use of the due process of
law clause that it has become more than a mere interpreter of law. It has, in fact come to
occupy the position of a maker of law and has been correctly described as a ‘third
chamber of the legislature, indeed, as a super legislature.’ Of course, the US Supreme
Court has assumed this position; it has not been specifically conferred upon it by the
constitution.

The framers of the Indian constitution took good care not to embody the due process of
law clause in the constitution. On the contrary, the Indian constitution refers it to
‘procedure established by law’. It can invalidate laws if they violate provisions of the
constitution but not on the ground that they are bad laws. In other words the Indian
Judiciary including the Supreme Court is not a Third Chamber claiming the power to sit
in judgement on the policy embodied in the legislation passed by the legislature.

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.

In Germany, the Constitutional Court is empowered to shoot down not only ordinary laws
but also constitutional amendments for being inconsistent with the fundamental character
of the constitution. The situation is different in countries where a written and federal
constitution limits the powers of parliament. For instance, in the USA, the Supreme Court
can strike down legislation enacted by Congress if it finds the same to be incompatible
with the constitution.

However in India, there has been a long tussle between parliament and the Supreme Court
on the scope and limits of judicial review. The twenty-fourth amendment to the
constitution passed in 1971 authorised parliament to amend any provision of the
constitution. However, the Supreme Court subsequently declared that while parliament
was competent to amend any provision of the constitution, any amendment had to
conform to the basic framework of the constitution. This led the government of Prime
Minister Indra Gandhi to introduce the forty-second amendment to the constitution during
the proclamation of emergency, which stripped the apex court of the power of reviewing
an amendment to the constitution. However, the forty-third and forty-fourth amendments
undid the provisions of the forty-second amendment regarding powers of the Supreme
Court to judge the validity of constitutional amendments.

Thus we see that the scope of Judicial Review in India is somewhat circumscribed as
compared to that in the U.S.A.

In India the fundamental rights are not so broadly coded as in the U.S.A and 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 act 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 methods logy adopted by the
constitution makers, the inevitable result of this has been to restrict the range of judicial
review in India.

It must, however, be conceded that the American Supreme Court has consumed its power
to interpret the constitution liberally and has made so thorough a use of the due process of
law clause that it has become more than a more interpreter of law.

It has, in fact come to occupy the position of a maker of law and has been correctly
described as a 'third chamber of the legislature, indeed, as a super legislature. Of course,
the U.S. Supreme Court has assumed this position; it has not been specifically conferred
upon it by the constitution.

Like the American Supreme Court, the Supreme Court of India enjoys the power of
Judicial Review' and this power has been specifically recognized by the constitution.
However its authority in relation to 'judicial review of legislation is more restricted than
that of the American Supreme Court.The framers of the Indian constitution took, good
care not to embody the due process of law clause in the constitution on the contrary, the
Indian constitution refers to 'procedure established by law' consequently, there has been
no scope for the development "Alexandrowicz is not conceived as an additional
constitution maker but as a body to apply express law."It can invalidate laws if they
violate provisions of the constitution but not on the ground that they are bad laws. In
other words the Indian Judiciary including the Supreme Court is not a Third Chamber
claiming the power to sit in judgement on the policy embodied in the legislation passed
by the legislature.
 Conclusion

Like the American Supreme Court, the Supreme Court of India enjoys the power of
judicial review and this power has been specifically recognised by the constitution.
However, we see that its authority in relation to ‘judicial review’ of legislation is more
restricted than that of the American Supreme Court.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 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.Despite various shortcomings of judicial review, it
cannot be denied that it has played an important role in ensuring constitutional
government in the country by keeping the centre and the states in the respective spheres.
It has also enabled the Constitution to change according to changed conditions by
imparting new meaning to the constitution. Through the exercise of this power, the
Supreme Court has protected the freedom of citizens and protected their Fundamental
Rights against encroachment by the legislative and executive wings of the
government.There is nothing in the world which is bad or good for itself but it is its uses
which make it bad or good. This review system also has same situation. If Supreme Court
use it only for country then it is very good but if Supreme Court uses it and keeps their
own interests in mind, it is worse for country as well as countrymen.But we know that
after principle of judicial care, Supreme Court never use it against national interests and
judges keeps national interests, safety, progress and dignity in their mind instead of their
own interests or conflicts.So we can say it is very useful and beneficial for the country of
USA and also in India.
REFERENCES