“JUDICIAL REVIEW: COMPARATIVE ANALYSIS OF INDIA & USA
Authored By- Megha Singh
Ll.M. From Chanakya National Law University, Patna
The main objective of judicial review is to determine the constitutionality or unconstitutionality of any legislative acts or executive action. Judicial review helps in adjusting to the new condition and according to the needs of the society. It helps in upholding the supremacy of constitutional law, to maintain balance between Center and State and to protect the basic rights or fundamental rights of the citizen of the India is the main objective of Judicial review. Administrative and legislative power between state and center are also one of the main concerns of judicial review. It is the job of judiciary to keep the different organs within the limited powers conferred upon them by constitutions. The legality of judicial review is based on Rule of Law, and obligation. Upon the public bodies to perform in accordance to the law. Judicial review is a way to make those persons responsible who hold public power accountable for its exercise and for the manner of its exercise and especially when it is outside the scope of political process. It is a weapon through which unjust harassing, unconstitutional laws and arbitrariness are checked.
One of the most important essential features of supremacy of law is essence of Judicial Review. Judicial Review is the power of court to review the work and action of legislative, executive and the work of judiciary. It is the power by which court scrutinize the validity of any law or whether it is valid or it is not valid. By using the power of judicial review, courts keep the legislature and executive within the boundaries of constitution. It keeps check and balance between legislature, executive and judiciary. Separation of power has made judicial review a reality. Judicial review gives great power in the hands of courts which can declare any law constitutional or unconditional which is in conflict with the law of the land. The principals on which the basis of judicial review is laid down are:
• Theory of limited government
• Supremacy of constitution with the requirement that ordinary law must confirm to the Constitutional law.
Therefore, it can be said the judicial review is mechanism through which executive or legislative
functions are subject to the review done by judiciary. It can be said the Constitution of India has
created an independent judiciary and it is vested with the power of judicial review to check the
actions of executive and legislature and whether a law is accordance with the law of the land and
declare it valid or void. Judicial review is a concept which basically originated in United Stated of America (USA) in the landmark judgment of Marbury vs. Madison. But initially, it originated in the case of Dr. Bonham vs. Cambridge University in which Lord Coke had rooted the scope of judicial review in the year 1610 in England. Judicial review is not mentioned expressly in US Constitution but Article III of US Constitution states "the judicial power of the United States which includes original, appellate jurisdiction and also matter arising under law and equity jurisdiction incorporates judicial power of Court. Art. VI of the Constitution provides”. Therefore, it can be said that Art VI incorporates “Constitution of USA is the supreme law of the land”. Supreme Court of USA has brought this concept of Judicial review as it is not expressly provided in Constitution of USA. SC of USA has the power to check the action taken by Congress and it also checks that essential legislative power is not being delegated to executive. The principle of due process of law creates harmony in USA by declaring any law which illegal or arbitrary as unconstitutional.
JUDICIAL REVIEW IN INDIA
Indian Constitution spirit lies in “Supremacy of Law”. One of the basic features of Indian Constitution is “Doctrine of Judicial Review” and it’s the hallmark of Indian Constitution. Judicial review is the concept of Rule of Law and can be said as touchstone of Indian Constitution.
Indian constitution doesn’t expressly provide for the term judicial review but it is an essential part of Indian Constitution system. Without judicial review there will be no Rule of law or Government of law, it would just be mockery delusion. Judicial review in India helps judiciary to keep check and balance between legislature and executive. There are many articles in Indian Constitution which provide for the power of judicial review such as Article 13, 32, 51, 131-136, 141, 143, 226, 227, 245, 246, 372.
The most important feature of judicial review is to ensure that authorities does not abuse or supersede their power and authority granted to them by Constitution and that individuals receives fair and just treatment. The purpose it to give relief to the aggrieved party by declaring an enactment as void, if in law such enactment is void, in the judgment given by court. But the real purpose is something higher i.e., no statute which is repugnant to the constitution should be enforced by courts of law.
When judicial review originated in USA in the 18th century it pioneered the other Constitution of the world as well and many countries drew inspiration from it. Judicial review in India is based on the concept of Rule of Law which is our pride heritage and great ancient culture. In 1877 Emperor vs. Burah for the first-time court came up with concept of judicial review in India. In this case it was held that an aggrieved party can challenged the constitutionality of a legislative Act which has been enacted by Governor General council which has been used excessively by him under the power given to him by Imperial Parliament. In this case Privy Council held that Indian Courts to an extent have the authority of judicial review with some form of limitation. In Secretary of State vs. Moment, Lord Haldane observed in the case that “the Government of India
cannot by legislation take away the right of the Indian subject conferred by the Parliament Act i.e. Government of India Act of 1858”. Again, in Annie Besant v. Government of Madras. Madras high court observed on the basis of Privy council decision that there was a fundamental difference between the legislative powers of the Imperial Parliament and the authority of the subordinate Indian Legislature, and any enactment of the Indian Legislature in excess of the delegated powers or in violation of the limitation imposed by the imperial Parliament will null and void.”
Formulation of Important Doctrines through Judicial Interpretation
➢ Article 13 of COI talks about Judicial Review of Post Constitution Laws and Pre- Constitutional Laws. This most important doctrines of judicial review is derived from this article like Doctrine of Eclipse and Doctrine of Severability. This article provides that judicial review can be done of any legislation be it past or future. This power has been given to High Courts and SC of India by virtue of Article 32 and 226 of the constitution respectively. Any law which is inconsistent with part III of COI can be declared as void using these articles. Supreme came up with these doctrines by interpreting many articles of the constitution.
Doctrine of Eclipse
Doctrine of eclipse is applicable in the cases of pre constitutional laws. Under Article 13 (1) of COI all pre-constitutional laws which are inconsistent with the part III of Indian constitution will become void and unenforceable after the enactment of COI. Initially when such laws were enacted they were operational and valid but after the commencement of Constitution they lost their validity by virtue of this Article. Such enactment and laws were eclipsed by account of Article 13(1). This is called Doctrine of Eclipse. In Bhikaji Narain Dharkras vs. State of M.P., in this case a state law gave authorization to the government of state to remove all the motor transport operator from transport business. After the commencement of constitution this part became void because it was infringing Article 19 (1)(g) of the constitution and it couldn’t be justified under Article 19 (6). Through first amendment in 1951 Article 19 (6) was amended and due to this it gave authority or power to the government to monopolize any business. After this amendment the said Act became enforceable and operative.
Article 13 provides for this doctrine of severability. The words provide in Article 13 “to the extent of contravention” form the basis of this doctrine. This doctrine states that if any particular provision of any act or statute offends or is against the constitution and the said offending part is severable from the rest only that part of statute will be declared as void or unconstitutional. Other provisions will remain valid and operational. If the valid and invalid part are so mixed that it is impossible to severe out the invalid part from valid then the whole of statute or act will be declared unconstitutional. This is known as doctrine of severability.
Doctrine of Prospective Overruling
Prospective overruling means to construe the earlier pronouncement given by court in such a manner that it suits the present-day needs. But keeping in mind that it does not bind the original party or any other party involved in the case originally which is bound by the precedent. The use of this doctrine overrules an earlier laid down precedent with effect limited to future cases and all the events that occurred before it is bound by the old precedent itself.8 In simpler terms it can be stated that courts for the future are laying down new laws. This doctrine was propounded in 6Golak Nath vs. State of Punjab, in this case SC overruled its verdict of Sajjan Singh10 and Shankari Prasad and propounded this doctrine of Prospective Overruling. The judges laid down their view in substantive way by stating that this doctrine is a modern doctrine which is required for a fast-moving society. SC stated that this doctrine will only have prospective operation and will not work retrospectively and therefore, 1st, 4th and 19th Amendment were held to be valid.
Judicial review of constitutional amendments
Constitutional Amendments in India are rigid in nature. We can say that SC is the guardian of our constitution and from time to time it can scrutinize the constitutional validity of constitutional amendment laws, but in reality, parliament has the greater power to bring amendment to the constitution exception being that it cannot destroy the basic feature of the constitution. Once there was a dispute between parliament and court that whether fundamental rights are amendable under Article 368. This question came before the SC in the case of Shankari Prasad v. Union of India , this was the first case which was relating to amending power of constitution and the validity of first constitution amendment was challenged which has curtailed the Article 31 i.e. Right to property. SC stated in its judgment that the power to amend the constitution including fundamental rights is there in Article 368 and the term ‘law’ in Article 13 (2) included only an ordinary law made in exercise of the legislative powers and does not include constitutional amendment which is made in exercise of constituent power. Therefore, it can be said that a constitutional amendment will be valid even when it abridges or takes or infringes any of the fundamental rights given under part III of the Constitution.
In Sajjan Singh vs. Rajasthan13, same question was raised regarding the validity of seventeenth Constitutional Amendment Act, 1964 it was called for question and once again court stated that constitutional amendment is outside the purview judicial review under Article 368. In 1967 9Golak Nath vs. State of Punjab, same question in regard to constitutional amendment was raised in the court. In this case Punjab Security of Land Tenures Act, 1953 in the ninth schedule of constitution was challenged on the ground that the first, fourth and seventeenth amendment were infringing the fundamental rights of the citizens and hence they should be declared unconstitutional. In this case SC overruled its judgment from Shankari Prasad and Sajjan Singh’s case. In this case SC stated that “an amendment is a law” within the meaning of Article 13 (2), it included every kind of law “statutory as well as constitutional law” and hence any constitutional amendment contriving Article 13 (2) will be declared as unconstitutional and void. Court further observed that “The power of Parliament to amend the constitution is derived from Article 245, read with Entry 97 of list 1 of the Constitution and not. SC once again was called upon to decide the validity of twenty-fourth, twenty-fifth and twentyninth amendment in the landmark case of Keshavananda Bharti vs. State of Kerela which is famously known as “Fundamental Rights Case”. In this case Kerala Land Reforms Act 1963 was challenged. But while this case was pending in the court, this Act was placed in the Ninth Schedule of the Constitution by the Twenty Ninth Amendment Act. Then again, these amendments were challenged in the court, Twenty Fourth, Twenty Fifth, and Twenty Ninth Amendment to the Constitution and also the question was raised as till what extent the amending power conferred by Art. 368 of the Constitution? SC in its decision overruled its judgment of Golak Nath’s case and held that “Under Art. 368 Parliament can amend the fundamental rights but cannot take or abridges the Basic Structure of the Constitution”.
According to this judgment of largest bench in the constitutional history propounded the “Theory of Basic Structure: A Limitation on Amending Power.” This theory was formulated by SC through the Doctrine of Judicial Review. SC through these cases scrutinized the validity of constitutional amendments by applying the Doctrine of Judicial Review.
Judicial Review of Parliamentary Actions & State Legislative Actions
Constitution of India gives legislative power to Parliament and State Legislature to legislate on different subject matter by virtue of Article 245 and 246. Article 245 (1) provides “subject to the provisions of the constitution, the parliament may make any laws for the whole and any part of the territory of India and a State Legislature may make a law for whole of the state and any part thereof”. The word “subject to the provisions of the constitution” imposes a limitation upon the Parliament and State Legislature to legislate. These important words mentioned in this particular article is the essence of Judicial Review in India. It basically ensures that legislatures would work within the boundaries of constitution and would not work arbitrarily. These words give power to courts to look into the validity of any legislation passed by Parliament and State Legislature. Article 141, it gives supreme power to SC of India to incorporate the Doctrine of Precedents through which SC can lay down its own view when there is a conflicting issue and these Precedents have a binding force behind them. In the case of SP Sampat kumar vs. Union of India constitutional validity of Administrative Tribunal Act, 1985, was challenged on the ground that it was excluding the jurisdiction of High Courts under Article 226 and Article 227 in matters relating to service. It has taken away the power of judicial review from HC’s which is an essential feature of the constitution. SC accepted that even though the Act has excluded the jurisdiction of HC it has not excluded the jurisdiction of SC under Article 32 and 136.
Further it was held that “a law passed under Art. 323-A providing for the exclusion of the jurisdiction of the High Courts must provide an effective alternative institutional mechanism of authority of judicial review. The judicial review which is an essential feature of the constitution can be taken away from the particular area only if an alternative effective institutional mechanism or authority is provided.”
India borrowed the system of judicial review of administrative action from United Kingdom i.e. UK. Judicial Review of Administrative action is one of the most important development in the arena of public law. If the government or the executive abuses its power vested by our Constitution then the person whose fundamental rights are being abrogated can approach the ordinary courts of law. Such actions can be quashed on the ground of being arbitrary or mala fide. “When the legislature confers discretion on a court of law or on an administrative authority, it also imposes responsibility that such discretion is exercised honestly, properly and reasonably. This view was given by DE Smith which stated that administrative action must be take with due diligence and care. So, judiciary must review the abusive discretionary power of Administrative action. It is the duty of judiciary to check and balance that if it finds any ground of illegality of any administrative action to declare it as void. As a common rule, courts don’t interfere with actions taken by administrative authorities in the exercise of its discretionary powers. But it doesn’t mean that there is no control over administrative power by the courts to control over the discretion of administration. In India, the court will interfere with the discretionary powers exercised by the administration on two grounds: i.e.
• failure to exercise discretion, and
• excess or abuse of discretion.
The judicial review of administrative action can be exercised on the following grounds:
a) Illegality – it means that law must be understood correctly by decision maker that regulates his decision-making power and he must give effect to it.
b) Irrationality – it means that a sensible person would never arrive at such a decision which is so outrageous that it clearly defies any logic or moral standards.
c) Proportionality – it simply means that in any administrative decision or action the end and the means relationship should be rational.
d) Procedural impropriety – it means that administrative action or decision must be based on reasonableness, fairness and it must be just.
e) Unreasonableness - means that either the facts do not warrant the conclusion reached by the authority or the authority or by the decision is partial and unequal in its operation.
In Air India vs. Nargesh Meerza, one of regulation required an air hostess to retire from Air India services upon reaching the age of 35years, or on marriage if the marriage took place within the four year of service provided or on first pregnancy whichever happened earlier. Air India regulation did not prohibit the air hostess to get married after the period of four years then if she fulfilled the first condition then there was no reason as to why her pregnancy should stand in the way of her services. SC in its judgment stuck down Air India’s and Indian Air lines’ Regulations on the retirement and pregnancy bar on the services of air hostess. Court struck down these regulations as unconstitutional on the ground that the conditions laid down were entirely arbitrary and unreasonable.
Current Position of Judicial Review in India
In India the scope of judicial review has grown exceptionally from AK Gopalan Case. Supreme Court plays a very vital role in interpreting the provisions of Constitution and through this interpretation judicial review has become one of the fundamental features of Constitutional Jurisprudence. In the recent judgment of Madras Bar Association vs. Union of India in this case SC scrutinized various provisions of Companies Act, 1956 and declared some of these provisions as ultra-virus in nature. SC held these provisions as unconstitutional. SC stated that NCLT and NCLAT as valid and declared some of its provision as unconstitutional on the ground that any member performing judicial function must have some judicial expertise and the number of judicial members must be more than the technical members to maintain the essential feature of the said constitution.
JUDICIAL REVIEW IN USA
The American Constitution is based on the rule of law. Its constitution is written and federal democratic in spirit. It provides “separation of powers with check and balances which are the heart and soul of the American Constitution”. Judicial review is a fundamental process through which America determines the validity of its law. In USA through the power of judicial review judiciary can check the action of Congress as well as President, if such action are contrary to the Constitution of USA then such actions or law will be declared as void. There is no explicit mention of judicial review in American Constitution. But the power of judicial review is incorporated in Article III & IV of American Constitution which can declare the law as unconstitutional. The concept of judicial review originated from the doctrine that the Constitution is Supreme Law of the land.
Objective of Judicial Review in USA
The main objective of judicial review in USA are as follows:
• To declare laws unconstitutional if they are contrary to the constitution of USA
• To defend such laws which are valid and are being challenged on the ground of being unconstitutional
• To protect and uphold the principle of Supremacy of the Constitution by interpreting its provision.
• To save the legislative function of Congress being encroached by other departments of the Government.
In USA doctrine of Judicial review is the fundamental feature of USA Constitution. Dr Bonham’s Case is said to bring the concept of Judicial review in USA. According to Willis “Dr. Bonham’s case was soon repudiated in England, but the doctrine announced in Coke’s dictum found fertile soil in the United States and sprouted into such a vigorous growth that it was applied by the US Supreme Court in the decisions of cases coming before it.”24 But in the year 1794, in the case of United States vs. Tale Todd SC of USA declared the Act of Congress as unconstitutional. In Hylton vs. United States, Chief Justice Chase observed that “it is necessary for me to determine whether the court constitutionally possesses the power to declare an Act of the Congress void on the ground of its being contrary to and in violation of the Constitution, but if the courts has such powers, I am free to declare it but in a clear case.”
In the landmark judgment of Marbury vs. Madison Supreme Court of USA used judicial authority (en banc) to declare the Act of Congress as unconstitutional. In this case when President John Adams lost his second term election in the year 1801, he used his last days to make a substantial number of political arrangements. When the new President Mr. Thomas Jefferson took oath and entered his office of President, he said to his secretary, not to convey the official printed material to the administration authorities who had been named by Adams. Due to this message administrative authorities including one Mr. Marbury were denied the employment. William Marbury then filed a writ of mandamus against Mr. Madison to compel him for commission in U.S Supreme Court.
Chief Justice Marshal stated that for issuing writ of mandamus the court must have the appellate jurisdiction, so in this case it cannot issue the writ of mandamus because it was lacking the jurisdiction. It was further stated by court that SC original jurisdiction cannot be expanded beyond the scope of Article III of the Constitution. SC has the power of judicial review for determining the validity of laws. SC declared Section 13 of Judiciary Act 1789 as unconstitutional and rejected the writ petition and therefore Madison was denied the commission. In this manner SC of USA came up with the concept of Judicial Review in USA.
Before this case SC didn’t declare any action of Congress as unconstitutional with judicial authority. This was the first case which laid down the foundation of judicial review to determine the validity of law passed down by Congress. There was huge expansion in judicial review after the judgment of Marbury’s case. It expanded the meaning of judicial review and gave protection to civil liberties and freedoms. Some of the cases which followed thereafter are as follows:
In the case of McCulloch v. Maryland a dispute arose between state and federal law. A bank named Bank of America was established by Federal law in the State of Maryland. After the establishment the state started imposing tax on bank in relation to relative transaction. This imposition of tax by state was challenged. The main issue was, “Can State law impose tax on bank which was established by Federal law?”. Court in its judgment stated that state cannot impose tax on such banks which are established under Federal Law. It cannot impose tax on Union authority. In this manner court created immunity for the National government.
.• Judicial Review under European Community Law
After joining the European Community Law UK has undergone significant changes in its legal system and its constitution. In the Administrative Court:
• Claimants may challenge actions and omissions by English public authorities, and even provisions of an Act of Parliament, on the ground of breach of Community law.
• Mostly, claims for judicial review may also on the validity of administrative decisions and legislations made by the institutions of the European Union32 In, Les Verts vs. European Parliament, it was held that “the European Union is a community based on the Rule of law, in as much as neither its member states nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional character.”
COMPARISON OF JUDICIAL REVIEW: INDIA AND USA
• Judicial review in India is wider than USA because Indian Constitution is flexible in nature with detailed words and expression whereas US constitution is very precise and rigid in nature. The words are very specific and exact in Indian Constitution.
• In India, there are many articles which provides glimpse of judicial review such as Article 13, 32, 131-136 etc. Though the term judicial review is not explicitly mentioned in the Constitution but there is implicit mention of judicial review in these articles. Whereas in America there is no specific provision for judicial review only Article III, IV, V talks about judicial power of Court. It is implicit in nature and it talks about supremacy of Constitution. American court formulated judicial review. Since there is no written constitution in UK there is no mention of judicial review, it is totally upon the discretion of Court.
• The constitution of USA is very rigid and its constitutional amendment is rarely used, whereas judicial review is used in three dimension such as Judicial Review of Constitutional Amendments, Legislative Acts and Administrative acts. While in UK Primary Legislative act are outside the purview of judicial review but secondary legislations are subject to judicial review.
In Whereas, in India and USA Constitutional supremacy prevails. Here Constitution is supreme law of the land and no law is superior to Constitution. All laws are subject to Constitution, if found violative of Constitution such laws will be declared as unconstitutional.
• Court of India and USA can determine the validity the law but in UK, the courts have very limited power to determine the validity of law.
• Administrative acts are subject to judicial review in both the countries. All executive actions are subject to scrutiny in Court on the ground of being illegal, irrational, mala fide etc. Doctrine of ultra vires exist in all the three countries for determining administrative action if authorities exceed their power.
• In India, for judicial review various doctrines have been formed by Indian Courts like doctrine of severability and doctrine of eclipse etc. these doctrines are implicitly incorporated in USA. But due to absence of judicial review of legislative acts in UK there is no scope for these doctrines.
Judicial review has become very dynamic concept over the years. In many countries’ judiciary is
considered as guardian of Constitution by applying judicial review. In India, courts scrutinize the validity of law to check whether they are inconsistent or illegal in nature. Every organ of the government must work within the limitation of the constitution, it is the basic concept of judicial
 Article 14,15,16 of The Indian Constitution 1950
 Emperor vs. Burah 1877
 Secretary of state vs. Bank of India AIR 1938
 Annie Besant v. Government of Madras AIR 1919
 Bhikaji Narain Dharkras vs. State of M.P AIR 1955
 Sajjan Singh vs State Of Rajasthan AIR, 1964
 Shankari Prasad v. Union of India, /SC/0013/ AIR1951
 Keshavananda Bharti vs. State of Kerela AIR 1973
 SP Sampat kumar vs. Union of India AIR 1980
 Air India vs. Nargesh Meerza AIR 1981 SC 1825
 Madras Bar Association vs. Union of India AIR 2020
 Dr Bonham’s Case U.S(1610)
 United States vs. yale Todd U.S (1794)
 Hylton vs. United States U.S (1796)
 Marbury vs. Madison U.S (1803)
 McCulloch v. Maryland U.S (1819)
 Les Verts vs. European Parliament US (1986)