Udicial Review in India and USA
Udicial Review in India and USA
Udicial Review in India and USA
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.
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 ofConstitution 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.
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.
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.
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.
The system of judicial review is also applicable in India. Although the term Judicial
Review has not been mentioned in theConstitution, 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 –
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
DraftConstitution, 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.’
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.
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.
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.
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.
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Bibliography
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4.Ghai K.K, Select Political System.
5.Rout B.C, Comparative Constitution.
6.Encyclopedia of Social Sciences.
7.Encyclopedia of Britanica.
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