Author: Sanya Wadhwa, 2nd Year LLB student of Dr. B.R. Ambedkar Law College, Jaipur
INTRODUCTION
According to the definition given by Britannica, Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. In simple words,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. It can also be said that judicial review has two prime functions i. e. legitimizing government actions and to protect the constitution against any undue governmental encroachment. Judicial review thus protects the sanctity of the constitution and gives supremacy to it and assures rule of law in any country. 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.
BACKGROUND
United States:
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. Judicial review in the United States was strongly established in the landmark case of Marbury v. Madison (1803). John Marshall (Chief Justice) in his decision, asserted that the judiciary had the power to review acts of Congress and determine whether they were consistent with the Constitution. Judicial review in the U.S. focuses on ensuring that both federal laws and state comply with the constitutional framework, especially with respect to the Bill of Rights and other amendments.
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 not an exception to this. Article 13 of the Constitution of India mentions the Judicial Review. The Constitution empowers the judiciary to declare laws inconsistent with respect to the Constitution as void. Gradually, judicial review in India has evolved beyond mere constitutional checks to include the protection of fundamental rights (Part III of the Constitution) and the oversight of parliamentary amendments. A landmark decision in the Kesavananda Bharati v. State of Kerala (1973), where the Supreme Court of India ruled that the basic structure of the Constitution cannot be altered by any constitutional amendment, thus expanding the scope of judicial review.
COMPARATIVE ANALYSIS
The scope of judicial review in India is narrower than that of what exists in the USA, though the American Constitution does not explicitly mention the concept of judicial review in any of its provisions.In the 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 the 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 the 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 of 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 should 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 to it as ‘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 on the limitations on the fundamental rights and the same should 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. The 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.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.
Implications of Differences
1. Political Accountability and Governance
USA: The U.S. judicial system, with its doctrine of judicial restraint and respect for political questions, tends to limit the judiciary’s role in policymaking. However, this can also mean that the courts may be less proactive in addressing systemic social issues, leaving the legislature and executive to deal with them. The judicial review process is more conservative in its approach, focusing on constitutional issues rather than policy or social reform.
India: India’s more active role in judicial review allows the judiciary to intervene in areas such as social justice, human rights, and governance. This has led to significant rulings on matters like environmental protection, fundamental rights, and affirmative action policies. However, critics argue that judicial activism can sometimes lead to overreach, with the judiciary encroaching on the powers of the executive and legislature, creating tensions between the branches of government.
2. Protection of Fundamental Rights
USA: In the U.S., the judicial review process primarily ensures the protection of individual rights as outlined in the Bill of Rights and subsequent amendments. The judiciary has played a crucial role in advancing civil rights (e.g., Brown v. Board of Education), but its conservative nature means that social change can often be slow.
India: Judicial review in India has played a more dynamic role in protecting fundamental rights. The Supreme Court has expanded the interpretation of rights, ensuring a broader range of protections for marginalized communities. While this approach has been praised for its progressive stance, it has also led to concerns about the judicial encroachment on the legislative and executive domains, especially in areas where policy decisions are involved.
CONCLUSION
The doctrine of judicial review which came into existence through a number of judicial decisions has been accepted in term and essence in almost all the countries. It finds its place in India as well as in America also not only through the recognition of the courts but also being implicitly embedded in numerous Constitutional provisions. The said power gives the much-needed autonomy to the Supreme Court so that they can give the true meaning to the individual liberty and rights by invalidating those laws which conflict with the Constitution. Since the Constitution is the grundnorm in any country, its sanctity cannot be hampered in any case. The sole responsibility to attain this main objective does not lie on the Supreme Court alone but also upon the citizens of the country therefore they have been given the right to approach the courts in order to challenge the laws which seem to violate the provisions of the Constitution.
The doctrine of judicial review gives immense power to the courts to strike down any law made by the parliament on the touchstone of the Constitution. Moreover, it was held in Kesavananda Bharati case that even if the Parliament takes away the judicial review power of the court by inserting laws in the 9 th Schedule even then the Court can judicially review the amendment through which the said law was inserted in the 9 th schedule if not that particular law. Thus, judicial review is one of the basic features of the Constitution which cannot be taken away in any case, the same is the case in America wherein the Judicial review is an indispensable tool in the hands of the judiciary. However, this doctrine cannot be exercised in an arbitrary manner. This power is not absolute in any country and thus it has to be exercised on certain principles and the decision has to be a reasoned one. The comparison of the two countries show that the American judiciary exercises this judicial review power more liberally but this in no sense denies that the Indian judiciary is bound by any external authority rather it is bound by the self – imposed limitations. Thus, judicial review exists in both the countries though they have certain differences, but the essence remains the same.
REFERENCES
https://www.britannica.com/event/Brown-v-Board-of-Education-of-Topeka
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