Author Details:-

Sukanya Das

Constitutional Law: A Comparative Analysis of Judicial Review in India and the United States

Judicial review is foundation of constitutional governance, which provides courts the authority to interpret constitution and measure the constitutionality of legislative and ministerial actions. This analysis compares the scope, implications and operation of judicial review in between the two world’s largest democracies: India and United States.

Abstract

Judicial review ensures the constitutional adherence and limit of governmental authority in democracies, and serves as a fundamental mechanism. This comparative study examines judicial review in Indiana and USA, which focuses on their frameworks, origins, landmark cases, practical implications and constitutional amendments. The United State approach, shaped by Marbury v. Madison (1803), emphasizes judicial restraint within the rigid constitutional framework. Moreover, India’s model, enshrined in its Constitution, is extensive and activist, leveraging Public Interest Litigation (PIL) to address systemic issues. This analysis explores the challenges such aa judicial overreach, delays, and politicization while proposing improvements like enhance judicial infrastructure, transparency, and technology adoption. By understanding the contracts and complementarities of these systems, this study highlights judicial review’s evolving role in constitutional governance and public welfare.

Introduction

Judicial review plays a pivotal role in maintaining the balance of power within democratic systems. It empowers courts to scrutinize the constitutionality of legislative and executive actions, safeguarding the principles of justice, equality, and liberty enshrined in constitutional frameworks. India and the UUSA, as two of the largest democracies, have adopted judicial review in distinct way, reflecting their unique political, cultural, and historical contexts.

The USA pioneered judicial review through the landmark case of Marbury v. Madison (1803), establishing the judiciary as the ultimate interpreter of constitutional law. Rooted in the doctrine of separation of powers, the U.S. model emphasizes judicial restraint, with courts confined to adjudicating cases brought before them by litigants with standing. This narrow approach underscores a rigid constitutional framework where amendments are infrequent and require significant consensus.

In contrast, India’s judicial review is explicitly embedded in its Constitution, granting courts the authority to strike down laws and executive actions violating fundamental rights. The Indian judiciary has embraced an activist role, particularly through the mechanism of PIL, which allows broader access to justice and addresses systemic issues. This proactive stance reflects the Indian Constitution’s flexibility and commitment to socio-economic justice.

This comparative analysis delves into the origins, frameworks, and practical implications of judicial review in these two democracies. It explores landmark cases such as Brown v. Board of Education in the U.S. and Kesavananda Bharati v. State of Kerala in India, examining their impact on constitutional jurisprudence. Furthermore, it addresses key challenges-such as judicial delays in India and politicization in the U.S.- and proposes recommendations for contribute to the discourse on enhancing judicial review as a tool for democratic governance and constitutional fidelity.

Origins and Framework

United States

The principle of judicial review in the USA was established through the landmark case of Marbury v. Madison (1803). In this case, Chief Justice John Marshall articulated the judiciary’s power to strike down laws that conflict with the Constitution, asserting the role of the Supreme Court as the ultimate interpreter of constitutional law. Judicial review in the United States is rooted in the doctrine of separation of powers, emphasizing checks and balances among the legislative, executive, and judicial branches.

India

India’s system of judicial review derives from its Constitution, which explicitly provides the judiciary with the power to review legislation and executive orders. Articles 13, 32, and 226 of the Indian Constitution empower the courts to declare any law or executive act void if it violates fundamental rights or constitutional provisions. Unlike in the United State, where judicial review evolved through precedent, India’s framework was enshrined at the inception of its constitutional governance in 1950.

Scope and Application     

United States

Judicial review in the United State has a narrow and case-specific approach, which limits the judiciary’s ability to proactively address systemic or emergent constitutional challenges. This approach confines courts to issues brought before them, potentially leaving broader societal or institutional problems unresolved unless directly litigated. Consequently, while maintaining judicial restraint, this model may fall short in responding to evolving needs or ensuring comprehensive constitutional governance. Courts can only adjudicate on matters brought before them by litigants with standing. The Constitution is considered a rigid document, and amendments require a rigorous process. The judiciary’s role focuses on interpreting constitutional text and historical intent while exercising restraint to avoid overreach.

India

India’s judiciary has a broader mandate. In addition to adjudicating disputes, courts engage in proactive governance through Public Interest Litigation (PIL). This unique mechanism allows courts to address systemic issues and enforce socio-economic rights by admitting cases even from parties without direct standing. PIL has transformed governance in India by compelling government accountability on matters such as environmental protection, gender justice, and rights of marginalized groups. By contrast, the U.S. system does not have a comparable mechanism, as it strictly adheres to the requirement of standing, thereby limiting judicial intervention to cases with direct litigants. This distinction underscores the Indian judiciary’s proactive approach to public welfare versus the restrained, litigant-focused model in the U.S. This mechanism allows individuals or groups to approach the judiciary on matters of public interest, even if they are not directly affected parties. The Indian Constitution is more flexible, with an amendment process that balances the rigidity of fundamental principles and the need for adaptation. Indian courts frequently engage in expansive interpretations to uphold socio-economic justice and fundamental rights.

Relationship with Other Branches of Government

United States

The U.S. judiciary maintains a strict separation from the legislative and executive branches. Judicial review ensures that the Constitution remains the supreme law, and the courts act as a check on governmental overreach. However, critics argue that this framework can lead to judicial activism, where courts are perceived as overstepping their constitutional mandate.

India

India’s judiciary operates within a parliamentary democracy, where the principle of separation of powers is balanced with the need for collaborative governance. The judiciary often intervenes to address legislative or executive inaction, especially in areas of fundamental rights and public welfare. However, this has led to accusations of judicial overreach and conflicts with the elected branches of government.

Landmark Cases

United States

Marbury v. Madison (1803): Established judicial review and reinforced the judiciary’s role as the interpreter of the Constitution.

Brown v. Board of Education (1954): Declared racial segregation in public schools unconstitutional, emphasizing equality.

Roe v. Wade (1973): Established the right to privacy in matters of abortion.

Citizens United v. FEC (2010): Affirmed free speech rights in political campaign financing.

India

Kesavananda Bharati v. State of Kerala (1973): Established the “basic structure doctrine,” limiting Parliament’s power to amend the Constitution.

Maneka Gandhi v. Union of India (1978): Expanded the interpretation of the right to life and personal liberty.

Vineet Narain v. Union of India (1997): Strengthened anti-corruption mechanisms through judicial directives.

MC Mehta v. Union of India (1986): Pioneered environmental jurisprudence in India through the enforcement of environmental protections.

Amendments and Their Impact

United States

Amendments to the U.S. Constitution are rare and require broad consensus. Examples include:

First Amendment: Protecting freedoms of speech, religion, and the press.

Fourteenth Amendment: Ensuring equal protection under the law and due process.

Nineteenth Amendment: Granting women the right to vote.

India

India’s constitution is more adaptable, with over 100 amendments. Key examples include:

First Amendment (1951): Addressed land reform and limitations on free speech in specific contexts.

Forty-second Amendment (1976): Introduced fundamental duties and expanded the directive principles of state policy.

Eighty-sixth Amendment (2002) Mary education a fundamental right for children aged 6-14.

Challenges and Critiques

United States

1. Judicial Activism: One of the most significant critiques of judicial review in the United States is the issue of judicial activism. Critics argue that decisions such as Roe v. Wade (1973), which legalized abortion, and Citizens United v. FEC (2010), which allowed to unlimited political spending by corporations and unions reflect judicial overreach. These decisions, some argue, have extended the judiciaries influence into policy areas traditionally reserved for the legislature. In Roe v. Wade, the Court interpreted the constitution you are such a right to privacy and, by extension, the right to an abortion, a decision many believe should have been made by elected representatives. Similarly, Citizens United shifted the landscape of American electoral politics, sparking debates over the role of money in politics. Critics argue that these decisions shape public policy in ways that could have been seen as outside the purview of judicial review, democratic principles by passing legislative processes.

• Politicization of Appointments: another critic of the US judicial system is the increasing politicization of Supreme Court appointments. With justices appointed for life the process of selecting nominees has become intensely partisan, in particularly in recent the kids. Political ideologies play a significant role in determining appointments, leading to concerns about judicial neutrality. The confirmation hearings for nominees, such as those of Justices Brett Kavanaugh and Amy Coney Barrett, highlighted how political divisions can overshadow qualification. This politicization undermines public trust in the judiciary as an impartial arbiter of the law, with critics asserting that justices may be influenced by their political beliefs when interpreting the Constitution.

• Lack of Accessibility: In the U.S., the requirement for litigants to have standing — a direct stake in the outcome of a case — limits access to the courts. This narrow scope can prevent marginalized or low-income individuals from challenging governmental actions, as they may not have the resources or direct involvement required for standing. This lack of accessibility undermines the principle of equal justice, as those most affected by governmental actions may not have the means to seek redress, exacerbating inequality in the legal system.

India

1. Delays and Backlogs: One of the most significant challenges facing India’s judiciary is the overwhelming backlog of cases. With over 40 million cases pending, the judiciary struggles to provide timely justice. That delays in adjudicating cases often lead to a situation where justice is denied for years, or even decades. These backlogs are exacerbated by a shortage of charges procedural inefficiencies, and sheer volume of cases that courts must process. As a result, many litigants experience prolonged uncertainty, undermining faith in the judicial systems ability to deliver fair and timely justice.
2. Judicial Overreach: While India’s judiciary has earned a reputation for activism, it is often criticized for judicial overreach. Critics argue that the judiciary sometimes encroaches upon the roles of the executive and legislature, thereby violating the principle of separation of powers. This concern is particularly pronounced when the judiciary intervenes in areas where it is perceived to lack expertise, such as policy decisions related to economic reforms, administrative issues, or governance. For example, the judiciary has occasionally issued orders on matters ranging from pollution control to resource allocation, decisions that many argue should fall within the domain of elected officials. The judiciary’s expansive approach has prompted calls for clearer boundaries to ensure that it does not infringe upon the democratic principle of elected representatives making policy choices.
3. Opaque Appointments Process: In India, the system for appointing judges to the higher judiciary, known as the collegium system, has been widely criticized for its lack of transparency. The process, which relies on a small group of senior judges to select candidates for appointment, is often seen as opaque, with little public scrutiny. This lack of transparency has led to concerns about accountability and fairness, with critics arguing that the system allows for nepotism or bias in the selection of judges. Efforts to introduce reforms, including proposals for a National Judicial Appointments Commission (NJAC), have faced resistance from the judiciary, further fuelling debates over the need for greater transparency and reforms in the judicial appointment process.

In both countries, these critiques highlight important areas for reform in the judicial review process. Addressing these challenges will require careful balance, ensuring that judicial power remains a check on government excess while also safeguarding the principles of fairness, impartiality, and democratic accountability.

Comparative Analysis

Judicial Review Philosophy

• United States: Judicial review in the U.S. is primarily grounded in textualism and originalism, which focus on interpreting the Constitution based on its original meaning and framers’ intent. This philosophy emphasizes judicial restraint, with courts typically reluctant to interfere with the legislative or executive branches unless there is a clear violation of the Constitution.
• India: India’s judicial review adopts a more transformative approach, where the judiciary is seen as a key player in addressing socio-economic inequalities and ensuring public welfare. The courts actively engage in expanding the scope of fundamental rights and often interpret the Constitution in a way that promotes social justice.

Mechanisms of Public Engagement

• United States: The U.S. judicial system limits access to the courts through the requirement of standing, meaning only those directly affected by an issue can bring a case before the court. This mechanism ensures that courts only deal with actual disputes but limits access to justice for marginalized groups.
• India: In contrast, India has a more inclusive approach with Public Interest Litigation (PIL), which allows individuals or groups to approach the courts on behalf of the public or marginalized communities, even without being directly affected by the issue. This enables the judiciary to address broad systemic issues and advocate for social reforms.

Role in Governance

• United States: In the U.S., the judiciary acts as a constitutional referee, ensuring that laws and government actions comply with the Constitution. Given the rigid nature of the U.S. Constitution, judicial review serves as a means to preserve the original principles set out by the framers and prevent any deviations.
• India: India’s judiciary plays a more dynamic role, balancing a flexible Constitution with an activist approach to governance. Courts often intervene to address governance failures, ensuring that executive and legislative actions align with both the letter and spirit of the Constitution. This helps address gaps in policy implementation and protect fundamental rights.

Independence and Accountability

• United States: U.S. Supreme Court judges are appointed for life, ensuring their independence from political pressures. However, this lifetime tenure raises concerns about accountability, as justices may not be subject to regular scrutiny or democratic processes once appointed.
• India: India’s judiciary is protected by the collegium system, where senior judges select new appointments to the higher courts, ensuring independence. However, this system is criticized for its lack of transparency and accountability, as the selection process is not open to public scrutiny, leading to calls for reforms to enhance transparency in judicial appointments.

Recommendations for Improvement in India

1. Judicial Infrastructure: The government should increase the number of courts and judges to address the significant backlog of cases and reduce delays in the judicial process.
2. Transparent Appointments: Reforms to the collegium system are necessary to enhance transparency and accountability in judicial appointments, ensuring fairness in the selection process.
3. Alternative Dispute Resolution: Expanding mediation and arbitration mechanisms can reduce the burden on courts and provide quicker, less formal avenues for resolving disputes.
4. Technology Adoption: Integrating advanced technologies, such as artificial intelligence for case management and expanding e-courts, can improve efficiency and accessibility within the judicial system.
5. PIL Reform: Clear guidelines should be established for Public Interest Litigation (PIL) to prevent misuse while maintaining its potential to address public issues and promote social justice. This will ensure that PIL continues to serve its transformative role in Indian society.

Conclusion

Judicial review in both India and the United States plays a crucial role in maintaining the supremacy of the constitution and ensuring the government actions align with constitutional principles. However, the approaches to judicial review in these two democracies differ significantly, reflecting their unique political, legal, and social context.

In the United States, judicial reviews founded on a rigid constitutional framework. The concept was first established in the landmark case of Marbury v. Madison (1803), where Chief Justice John Marshall affirmed the judiciaries’ role in reviewing legislative and executive actions. The U.S. model emphasizes judicial restraint, meaning that code generally refrain from overstepping their boundaries or striking down laws unless there is a clear violation of the constitution. This restraint is often influenced by the principle of separation of powers and the belief that elected representatives would be the primary decision- makers. Moreover, the process of judicial review in the US is typically initiated put the adversarial system, where individuals or organizations must have stood to bring a case before the court. This limitation ensures that only actual legal disputes are adjudicated, which can sometimes result in a narrower scope of judicial intervention.

In contrast, India’s approach to judicial review is more expensive and activist. The Indian Constitution, which came into effect in 1950, provides the judiciary with the authority to strike down laws that violate fundamental rights and the basic structure of the constitution. In their system is characterized by an activist judiciary, willing to take proactive measures in cases where the legislature or executive may fall short in protecting the rights of citizens. The Indian judiciary is particularly known for its use of public interest anyone including non-litigants, to approach the courts on behalf of those unable to speak justice themselves. This tool has enabled the judiciary to address a wide range of system issues former from environmental concerns to socioeconomic rights, making judicial review in India and important instrument for social change.

Despite their strengths, both systems face criticism. In India, judicial rewarded and delays in delivering justice of common concerns first of the Indian judiciary broad powers sometimes raise question about its end movement into the legislative domain. Conversely the US system has been criticized for limited accessibility has the requirement for standing and lengthy legal processes can prevent marginalized groups from seeking redress. Additionally, there are concerns about the politicization of judicial appointments in the U.S., which could affect impartiality in the judicial review process.

In conclusion, while judicial in both India and the United States servers as an essential check on governmental power and a means to safeguard constitutional principles, each system has its strengths and challenges. Judiciary must continue to evolve in both countries to address issues of accessibility, overreach, and accountability, ensuring that it remains a dynamic and effective tool for maintaining constitutional integrity and governance.

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