Various Ways in Which Judicial Review Can Be Done in India and the US

Meaning of Judicial Review

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. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. The institution of judicial review in this sense depends upon the existence of a written constitution. Justice Balakrishnan opined that “judicial review safeguards civil and political rights of individuals and sometimes controls the power of every organ of the state. The conventional usage of the term judicial review could be more accurately described as “constitutional review,” because there also exists a long practice neither of judicial review of the actions of administrative agencies that require neither that courts have the power to declare those actions unconstitutional nor that the country have a written constitution. Such an “administrative review” assesses the allegedly questionable actions of administrators against standards of reasonableness and abuse of discretion.

When courts judge challenged administrative actions to be unreasonable or to involve abuses of discretion, those actions are declared null and void, as are actions that are judged inconsistent with constitutional requirements when courts exercise judicial review in the conventional or the constitutional sense. Whether or not a court has the power to declare the acts of government agencies unconstitutional, it can achieve the same effect by exercising “indirect” judicial review.

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In such cases, the court pronounces that a challenged rule or action could not have been intended by the legislature because it is inconsistent with some other laws or established legal principles. Constitutional judicial review is usually considered to have begun with the assertion by John Marshall, chief justice of the United States (1801–35), in Marbury v. Madison (1803), that the Supreme Court of the United States had the power to invalidate legislation enacted by Congress.

There was, however, no express warrant for Marshall’s assertion of the power of judicial review in the actual text of the Constitution of the United States; its success rested ultimately on the Supreme Court’s own ruling, plus the absence of effective political challenge to it. Thus, judicial review means a court’s authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

In other words review by a court of law of actions of a government official or entity or of some other legally appointed person or body or the review by an appellate court of the decision of a trial court is called judicial review. Judicial review has two prime functions namely: 1. Legitimization of government action. 2. Protecting the constitution against any undue encroachment by the government.

Origin of Judicial Review

Scholars trace the origins of judicial review to Dr. Bonham’s Case (1610).

Sir Edward Coke, of England’s Court of Common Pleas, stated that “when an act of parliament is against common right and reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void” Coke believed that the common lawyer possessed “artificial reason of the law” and that this capacity elevated him to nearly equal footing with king and Parliament. According to Coke, special learning required to interpret the law placed above politics. If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. … They would declare it void,” insisted future chief justice John Marshall at the 1788 Virginia Ratifying Convention. Marshall supplied a practical meaning to these words in the classic case of Marbury v. Madison (1803), in which he securely rooted the modern doctrinal source of judicial review.

Marshall himself contributed to the chain of events that culminated in Marbury. Shortly before his appointment to the Court in 1801, Marshall, as secretary of state, failed to deliver a commission as justice of the peace in the District of Columbia to William Marbury, a loyal Federalist. Marbury requested that James Madison, the secretary of state under newly elected president Thomas Jefferson, issue the commission. Madison refused, and Marbury went directly to the Supreme Court.

He claimed that under section 13 of the Judiciary Act of 1789 the Court had the original jurisdiction to issue writs of mandamus. Marbury wanted the Federalist dominated Supreme Court to order the Jeffersonian Republican-controlled executive branch to deliver his commission. Marbury’s case threatened to plunge the justices into a political thicket. They readily calculated the furor that a writ of mandamus issued against Jefferson’s administration would stir at a time when more radical Republicans were bent on stripping the Court of its power.

At best, the president might have simply ordered Madison to disregard the Court; at worst, he might have lent even more of his prestige to efforts already underway by the radical wing of his party in Congress to limit sharply the Court’s power. What Marshall gave to Marbury in the first half of the opinion he took away in the second. Although a writ of mandamus was in order, the Court could not issue it. The chief justice arrived at this conclusion through a close textual reading of section 13 of the 1789 act and also Article III of the Constitution.

Congress might subtract from the Court’s original jurisdiction, but Congress could not add to it—as section 13 did—because Article III had already established the Court’s jurisdiction fully. With arguments reminiscent of state court implementation of judicial review during the 1780s, Marshall worried that an expansion of the Court’s jurisdiction would thrust the justices into political disputes that the political branches themselves could not settle. Such involvement, he concluded, would prevent the Court from acting primarily as the legal institution he believed the departmental theory required. Marbury was a problematic constitutional case in a difficult political setting. Marshall’s opinion was defensive; it sought to keep the Court free of political pressures by limiting its role to clearly legal as opposed to political issues. Marshall did not exercise judicial discretion in the modern sense of the word. Interpreting law was not synonymous with making it. Marbury did not receive his commission, but Marshall used the occasion to pronounce the essential elements of judicial review.

Although some nineteenth-century state court decisions claimed no more for judicial authority than did Marbury, later instances of judicial review asserted a broader scope of judicial power. Marshall’s decisions involving the constitutionality of state legislation proved considerably more controversial in time than Marbury. In a series of major decisions between 1810 and 1824, Marshall resorted to natural law, the Contracts Clause, and the commerce power, among others, to void state statutes, while simultaneously narrowing the reach of the Eleventh Amendment.

In Fletcher v. Peck (1810), Marshall relied both on natural law formulations drawn from Calder and on the contracts clause of Article I, section 10 of the Constitution to strike down a state statute interfering with title to real property. But nine years later, in Dartmouth College v. Woodward, Marshall abandoned the natural law leg of his Fletcher reasoning and relied on the Contracts Clause alone to thwart a state’s attempt to modify the charter of a corporation.

The Dartmouth College decision is regarded as an essential step in the emergence of the private, profit-making corporation as a legal entity in the United States (see Private Corporation Charters). Marshall limited a state’s power to revoke a legislatively granted tax exemption in New Jersey v. Wilson (1812), a particularly controversial holding because it cut so close to sovereign state powers (see State Sovereignty and States’ Rights). He extended the reach of judicial power over state taxation in McCulloch v.

Maryland (1819), arguably his greatest and most influential opinion, holding that a state could not tax the Bank of the United States or any other instrumentality of the federal government. McCulloch provoked a storm of controversy, most of it emanating from Virginia, but that did not deter Marshall from constricting the Eleventh Amendment in Osborn v. Bank of the United States (1824) to prohibit the state of Ohio from taxing a branch of the Bank in violation of the McCulloch holding. The decision that most antagonized the Virginians involved an assertion of the Court’s authority not overstate legislation but over a state supreme court.

Martin v. Hunter’s Lessee (1816), an opinion was written by Justice Joseph Story after Marshall had to excuse himself for personal interest in the subject matter of the litigation, asserted the power of the United States Supreme Court over the politically sensitive subject of state confiscation of Loyalist property during the War for American Independence. Despite the fervid opposition of Chief Judge Spencer Roane of the Virginia Court of Appeals, who denounced Martin as a fatal incursion on state sovereignty, Marshall again reversed a Virginia holding in Cohens v.

Virginia (1821) in a ringing vindication of the Supremacy Clause of Article VI. Gibbons v. Ogden (1824) provided the Court with its first opportunity to construe the Commerce Clause of Article I, section 8, which Marshall used to void a state monopoly of river transportation. Although the Contracts Clause remained the Court’s most potent weapon of discipline over state legislation throughout the nineteenth century, the Commerce Clause was to emerge in the twentieth as the principal source of federal legislative authority, and Marshall’s expansive reading set it off on its career as the basis of vast federal regulatory power over the economy.

President Thomas Jefferson, responding to Marshall’s opinion in Marbury, composed “Instructions to a Federal Prosecutor” in 1807, attempting to advance the prosecution of Aaron Burr for treason. Jefferson argued against citing Marbury and proposed “to have [the decision] denied being law. ” He went on to hold “the three great branches of the government should be coordinate, and independent of each other. ” Jefferson believed each branch of the government had the right to decide for itself the constitutionality of matters before it and objected to a claim that the Court’s judgment was superior to that of the other branches. His efforts on behalf of the repeal of the Judiciary Act of 1801 and the first judicial impeachments supported the doctrine of “coordinate construction,” whereby each branch of the federal government interprets the Constitution for itself. The Pennsylvania case of Eakin v. Raub (1825) provided criticism of Marbury from the state’s chief judge, John Gibson. His dissent, in that case, is viewed as the best exposition of legislative supremacy in early American history.

The case dealt with judicial review in Pennsylvania state courts but also addressed questions of federal power raised in Marbury. Gibson argued that “if the judiciary will inquire into anything besides the form of enactment, where shall it stop? ” He went on to object, “That the judiciary is of superior rank has never been pretended, although it has been said to be coordinate”. Gibson’s reading of the Constitution led him to observe, “Had it been intended to interpose the judiciary as an additional barrier, the matter would surely not have been left in doubt”.

To Gibson, the written Constitution was accessible to the public and it was the public’s ability to hold the legislature accountable to the text that provided the ultimate check on the excesses of government. The Court’s power of review over federal legislation lay dormant for a half-century after Marbury, despite the Court’s activism with respect to state legislation. Chief Justice Roger B. Taney reassumed the power in Scott v. Sandford (1857) by invalidating the Missouri Compromise of 1820, a federal statute that prohibited the spread of slavery into the Louisiana Purchase territory north of Missouri.

Taney’s opinion would have been unpopular enough in the North even without the complication of expanded Supreme Court power over politically sensitive issues. Yet the violent northern political reaction to Taney’s provocative decision did not produce a sustained assault on the Court as an institution, no matter how fervently northern political leaders assailed Dred Scott and its author. Late in his opinion, Taney also claimed that the slavery restriction violated the Due Process Clause of the Fifth Amendment.

But he did not pursue the point there, and Dred Scott was soon overtaken by events, so the potential of the dictum was not realized for over a generation. President Abraham Lincoln’s first inaugural address (1861) indicates the continuing resistance to rule by the judiciary in the middle of the nineteenth century. In this address, Lincoln sought to reassure the southern states that they would continue to be governed by law rather than fiat. His discussion of the law upon assuming the office of the presidency included extended treatment of his role as interpreter. I take the official oath today, with no mental reservations, and with no purpose to construe the Constitution or laws, by any hypercritical rules. ” Grounding his analysis on the concept of the perpetuity of the union, Lincoln engaged in a disquisition on the nature and interpretation of the Constitution. Union came first; the purpose of the Constitution was to form a more perfect one. Lincoln acknowledged that decisions of the Supreme Court were binding on the parties involved and that they were also “entitled to very high respect and consideration, in all parallel cases, by all other departments of the government. But he also insisted that “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal. Lincoln’s concluding reaffirmation of popular sovereignty continues to influence the meaning of judicial review even today.

Judicial Review in India

In post-independence India, the inclusion of explicit provisions for ‘judicial review’ were necessary in order to give effect to the individual and group rights guaranteed in the text of the Constitution. Dr. B. R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provision related to the same as the ‘heart of the Constitution’.

Article 13(2) of the Constitution of India prescribes that the Union of the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void. While judicial review over administrative action has evolved on the lines of common law doctrines such as ‘proportionality’, ‘legitimate expectation’, ‘Reasonableness’ and principles of natural justice, the Supreme Court of India and the various High Courts were given the power to rule on the Constitutionality of legislative as well as administrative actions.

In most cases, the power of judicial review is exercised to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th schedule, contemplates a clear demarcation as well as a zone of intersection between the law-making powers of the Union Parliament and the various State Legislatures. Article 372 of the constitution establishes the judicial review of pre-constitutional legislation.

Article 137 creates and confers the power to review its own order by the apex court. Such power is subject to provisions of law. Article 137 is substantive in nature but is silent on the procedural aspect of judicial review.

There are 3 principal ingredients of the article:

  1. Supreme Court is hereby empowered to review its own order or judgment.
  2. Exercise of such power by the honorable Supreme Court is subject to the provisions of law made by the parliament.
  3. Exercise of such power by the Supreme Court is subject to the rulemaking power as provided under article 145 of the constitution.

Hence the scope of judicial review before Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative competence between the center and the states. The power of the Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights.

This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law – such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from a lower court and bring it before itself).

Besides the Supreme Court, the High Courts located in the various States are also designated as constitutional courts, and Article 226 permits citizens to file similar writs before the High Courts. Judicial review of constitutional amendments consists of the following landmark judgments: Shankari Prasad v. Union of India (A. I. R 1951 SC 458), the 1st amendment act of 1951 was challenged before the honorable Supreme Court on the ground that the said act abridged the right to property and that it could not be done as there was a restriction on the amendment of Fundamental Rights under Article 13(2).

The Supreme Court rejected the contention and held that Article 13(2) does not affect the amendments under Article 368. In Sajjan Singh v. the State of Rajasthan (AIR 1965 SC 845) the competence of the Parliament to enact the 17th Amendment was challenged before the Constitution Bench on the ground that it violated the fundamental rights under Article 31(A). The Supreme Court reiterated its earlier stand taken in Shankari Prasad case. Until 1967 the Supreme Court held that the amendment acts were not ordinary laws and could not be struck down by the application of Article 13(2).

The historic case of Golak Nath v. State of Punjab (AIR 1967 SC 1643) was heard by a special bench as the validity of three Constitutional Amendments was challenged. The SC by a majority of 6:5 reversed its earlier decision and declared that the Parliament under Article 368 has no power to take away or abridge the Fundamental Rights contained in Chapter III of the Constitution. The constitutional validity of the 24th, 25th, and 29th Amendments was challenged in the case of Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461) popularly known as the Fundamental Rights Case.

It was held that judicial review is the basic structure of the Constitution and therefore it cannot be damaged or destroyed by amending the Constitution under Article 368. In Minerva Mills v. Union of India (AIR 1980 SC 1789) the Supreme Court by a majority decision has struck down Section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principle of State Policy over Article 14, 19 and 31 of Part III of the Constitution on the ground that Part III and IV are equally important and absolute primacy of one over the other is not permissible.

With the advent of Public Interest Litigation (PIL) in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a ‘continuing mandamus’ for ensuring that executive agencies comply with judicial directions. In this category of litigation, judges have also imported private law remedies such as ‘injunctions’ and ‘stay orders’ into what are essentially public law-related matters. Successful challenges against statutory provisions result in reliefs such as the striking down of statutes or even reading down of statutes, the latter implying that courts reject a particular approach to the interpretation of a statutory provision rather than rejecting the provision in its entirety. Beginning with the first few instances in the late-1970’s, the category of Public Interest Litigation (PIL) has come to be associated with its own ‘people-friendly’ procedures. The foremost change came in the form of the dilution of the requirement of ‘locus standi’ for initiating proceedings.

Since the intent was to improve access to justice for those who were otherwise too poor to move the courts or were unaware of their legal entitlements, the Court allowed actions to be brought on their behalf by social activists and lawyers. In numerous instances, the Court took Suo Moto cognizance of matters involving the abuse of prisoners, bonded laborers, and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as ‘epistolary jurisdiction’.

In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the government’s condonation of abusive practices, in most public interest related litigation, the judges take on a far more active role in the literal sense as well by posing questions to the parties as well as exploring solutions.

Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding.

To overcome this problem, our Courts have developed the practice of appointing ‘fact-finding commissions’ on a case-by-case basis which are deputed to inquire into the subject-matter of the case and report back to the Court. These commissions usually consist of experts in the concerned fields or practicing lawyers. In matters involving complex legal considerations, the Courts also seek the services of senior counsels by appointing them as amicus curiae on a case-by-case basis. However, in many jurisdictions – questions have been asked about the proper understanding of ‘judicial review’ as well as its expansion.

There are two principled objections offered against the very idea of ‘judicial review’ in a democratic order. The first idea is that the judiciary being an unelected body is not accountable to the people through any institutional mechanism. In most countries, judges are appointed through methods involving selection or nomination, in which ordinary citizens do not have a say. It is argued that allowing the judiciary to rule on the validity of the enactments passed by a popularly elected legislature amounts to a violation of the idea of ‘separation of powers’.

Skepticism is also voiced against judges using their personal discretion to grant remedies in areas in which they have no expertise. This critique locates the role of the judiciary as purely one of resolving disputes between parties and deferring to the prescriptions of the elected legislature while doing so. However, we must also consider another nuanced objection to the doctrine of ‘judicial review’. It is reasoned that the substantive contents of a constitution adopted by a country at a particular point of time reflect the will of its framers.

However, it is not necessary that the intent of the framers corresponds to the will of the majority of the population at any given point of time. In the Indian setting, it is often argued that the members of the Constituent Assembly were overwhelmingly drawn from elite backgrounds and hence did not represent popular opinions on several vital issues. Furthermore, the adoption of a constitution entails a country’s pre-commitment to its contents, and the same become binding on future generations.

Clearly the understanding and application of constitutional principles cannot remain static and hence a constitutional text also lays down a procedure for its amendment. This power of amendment by the legislature is not unlimited and the idea of ‘judicial review’ designates the higher judiciary as the protector of the Constitution. This scheme works smoothly as long as the demands and aspirations of the majority of the population correspond with the constitutional prescriptions.

However, the scope for dissonance arises when Majoritarian policy-choices embodied in legislative or executive acts come into conflict with constitutional provisions. The higher judiciary is then required to scrutinize the actions of its co-equal branches of government. Some scholars have argued that fact-situations of this type involve tensions between the understanding of the words ‘constitutionalism’ and ‘democracy’ respectively. Hence, it is postulated that the provision for ‘judicial review’ gives a self-contradictory twist to the expression ‘constitutional democracy’.

In this regard, the role of the judiciary can be described as one of protecting the counter-majoritarian safeguards enumerated in the Constitution. It is apt to refer to an opinion given by Justice Robert Jackson where it was held that citizens could not be compelled to salute the U. S. national flag if the same offended their religious beliefs. Article 21 of the Constitution of India reads as follows: “No person shall be deprived of his life or personal liberty except according to the procedure established by law. The interpretation of this article in the early years of the Supreme Court was that ‘personal liberty’ could be curtailed as long as there was a legal prescription for the same. In A. K. Gopalan’s case, the Supreme Court had ruled that ‘preventive detention’ by state agencies was permissible as long as it was provided for under a governmental measure (e. g. legislation or an ordinance) and the Court could not inquire into the fairness of such a measure. It was held that the words ‘procedure established by law’ was different from the ‘substantive due process’ guarantee provided under the 14th amendment to the US Constitution.

It was also reasoned that the framers of the Indian Constitution consciously preferred the former expression over the latter. This narrow construction of Article 21 prevailed for several years until it was changed in Maneka Gandhi’s case. In that decision, it was held that governmental restraints on ‘personal liberty’ should be collectively tested against the guarantees of fairness, non-arbitrariness and reasonableness that were prescribed under Articles 14, 19, and 21 of the Constitution.

The Court developed a theory of ‘inter-relationship of rights’ to hold that governmental action which curtailed either of these rights should meet the designated threshold for restraints on all of them. In this manner, the Courts incorporated the guarantee of ‘substantive due process’ into the language of Article 21. This was followed by a series of decisions, where the conceptions of ‘life’ and ‘personal liberty’ were interpreted liberally to include rights which had not been expressly enumerated in Part III.

In the words of Justice Bhagwati: “we think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing, and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms. ” Notably, over the decades, the Supreme Court has affirmed that both the Fundamental Rights and Directive Principles must be interpreted harmoniously.

It was observed in the Kesavananda Bharati case, that the directive principles and the fundamental rights supplement each other and aim at the same goal of bringing about a social revolution and the establishment of a welfare State, the objectives which are also enumerated in the Preamble to the Constitution. Furthermore, in Unni Krishnan, J. P. v. State of Andhra Pradesh, Justice Jeevan Reddy declared:” The provisions of Parts III and IV are supplementary and complementary to each other and not exclusionary of each other and that the fundamental rights are but a means to achieve the goal indicated in Part IV”.

This approach of harmonizing the fundamental rights and directive principles has been successful to a considerable extent. As indicated earlier, the Supreme Court has interpreted the ‘protection of life and personal liberty’ as one which contemplates socio-economic entitlements. For instance, in Olga Tellis v. Bombay Municipal Corporation, a journalist had filed a petition on behalf of hundreds of pavement-dwellers who were being displaced due to construction activity by the respondent corporation.

The Court recognized the ‘right to livelihood and housing’ of the pavement dwellers and issued an injunction to halt their eviction. In Parmanand Katara v. Union of India, the Court held that no medical authority could refuse to provide immediate medical attention to a patient in need in an emergency case; The public interest litigation had arisen because many hospitals were refusing to admit patients in medico-legal cases. Hence, the Supreme Court ruled that access to healthcare is a justiciable right.

In another prominent Public Interest Litigation, the Supreme Court ordered the relocation of hazardous industries located near residential areas in New Delhi. In the process, it spelled out the citizens’ ‘right to clean environment which was in turn derived from the protection of life and liberty enumerated in Article 21. The court has also recognized access to free education as a justiciable right. This decision prompted a Constitutional amendment which inserted Article 21-A into the Constitutional text, thereby guaranteeing the right to elementary education for children aged between 6-14 years.

The Courts have also pointed to Directive principles in interpreting the prohibitions against forced labor and child labor. The enforcement of these rights leaves a lot to be desired, but the symbolic value of their constitutional status should not be underestimated. In Parmanand Katara v. Union of India, the Supreme Court accepted an application by an advocate that highlighted a news item titled” Law Helps the Injured to Die” published in a national daily, The Hindustan Times.

The petitioner brought to light the difficulties faced by persons injured in road and other accidents in availing urgent and life-saving medical treatment since many hospitals and doctors refused to treat them unless certain procedural formalities were completed in these medico-legal cases. The Supreme Court directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law. In many other instances, the Supreme Court has risen to the changing needs of society and taken proactive steps to address these needs.

It was therefore the extensive liberalization of the rule of locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to public interest litigation was given by a 7-judge bench in the case of S. P. Gupta v. Union of India. The judgment recognized the locus standi of bar associations to file writs by way of public interest litigation. In this particular case, it was accepted that they had a legitimate interest in questioning the executive’s policy of arbitrarily transferring High Court judges, which threatened the independence of the judiciary.

Explaining the liberalization of the concept of locus standi, the court opined: “It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him. The expansion of ‘judicial review’ (which is often described as ‘judicial activism’) has of course raised the popular profile of the higher judiciary in India. However, arguments are routinely made against the accommodation of ‘aspiration’ directive principles within the ambit of judicial enforcement. There are two conceptual objections against the justiciability of these positive obligations.

The first is that if judges devise strategies to enforce the directive principles, it amounts to an intrusion into the legislative and executive domain. It is reasoned that the articulation of newer fundamental rights is the legislature’s task and that the judiciary should refrain from the same. Furthermore, it is posed that executive agencies are unfairly burdened by the costs associated with these positive obligations, especially keeping in mind that these obligations were enumerated as directive principles by the framers on account of practical considerations.

This criticism mirrors the familiar philosophy of ‘judicial restraint’ when it comes to constitutional adjudication. However, the second objection to the reading in of positive obligations raises some scope for introspection amongst judges. It can be argued that the expansion of justiciability to include rights that are difficult to enforce takes away from the credibility of the judiciary in the long-run. The judicial inclusion of socio-economic objectives as fundamental rights can be criticized as an unviable textual exercise, which may have no bearing on Ground-level conditions.

In turn, the unenforceability and inability of state agencies to protect such aspiration rights could have an adverse effect on public perceptions about the efficacy and legitimacy of the judiciary the prescription of normative rights always carries the risk of poor enforcement. However, the question we must ask ourselves is whether poor enforcement is a sufficient reason to abandon the pursuit of rights whose fulfillment enhances social and economic welfare. At this point, one can recount Roscoe Pound’s thesis on the law as an agent of social change.

The express inclusion of legal rights is an effective strategy to counteract social problems in the long-run. At the level of constitutional protection, such rights have an inherent symbolic value that goes beyond empirical considerations about their actual enforcement. The colonial regime in the Indian subcontinent periodically made legislative interventions to discourage retrograde and exploitative social practices such as Sati (immolation of widows), the prohibition of widow-remarriage, and child marriage.

Even though there have been persistent problems in the enforcement of these legislations, in the long run, they have played an important part in reducing the incidence of these unjust customs. It is evident that in the short run even the coercive authority of law may not be enough of a deterrent, but in the long run, the very fact of the continued existence of such authority helps in creating public opinion against the same practices. In the same way, the framers of our Constitution sought to depart from the inequities of the past by enumerating a whole spectrum of rights and entitlements.

While the understanding of ideas such as ‘social equality’ and ‘religious freedom’ is keenly contested in the legislative as well as judicial domains, there is no doubt that constitutional rights have been an important tool of social transformation in India. The enumeration of the various civil liberties and protections against arbitrary actions by the state are now identified as core elements of citizenship and violations provoke a high standard of scrutiny both by the judiciary as well as civil society groups.

The inclusion of entitlements such as the universal adult franchise has greatly reduced the coercive power of casteist and feudal social structures and empowered political parties that represent historically disadvantaged sections such as the Scheduled Castes (SC) and Scheduled Tribes (ST). Even though practices such as untouchability, forced labor, and child labor have not been totally eradicated, our constitutional provisions prohibiting the same are the bedrock behind legal as well as socio-political strategies to curb the same.

The Supreme Court of India has further internalized the importance of laying down clear normative standards that drive social transformation. Its interventions through strategies such as the expansion of Article 21 and the use of innovative remedies in Public Interest Litigation (PIL) cases have actually expanded the scope and efficacy of constitutional rights by applying them in previously unenumerated settings. Furthermore, the Courts allow groups and interests with unequal bargaining power in the political sphere to present their case in an environment of due deliberation.

The dilution of the rules of standing among other features has allowed the Courts to recognize and enforce rights for the most disadvantaged sections in society through an expanded notion of ‘judicial review’. Even though the framers of our Constitution may not have thought of these innovations on the floor of the constituent assembly, most of them would have certainly agreed with the spirit of these judicial interventions.

Judicial Review in the U. S. A:

Judicial review is the idea, fundamental to the US system of government that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution. Judicial review was established in the classic case of Marbury v. Madison, 5 US 137 (1803). If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect?

Or, in other words, though it is not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law is in opposition to the Constitution, if both the law and the Constitution apply to a particular case so that the Court must either decide that case conformably to the law, disregarding the Constitution or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual.

It would be giving to the Legislature practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure. That it thus reduces to nothing that we have deemed the greatest improvement on political institutions – a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. Marbury v. Madison, 5 US 137 (1803). The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though the judicial review is usually associated with the U.

S. Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority. In the United States, the supremacy of national law is established by Article VI, Clause 2, of the U. S. Constitution. Called the supremacy clause, it states that “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land. It goes on to say that, “judges in every State shall be bound thereby. ” This means that state laws may not violate the U. S. constitution and that all state courts must uphold the national law. State courts uphold national law through judicial review. Through the judicial review, state courts determine whether or not state executive acts or state statutes are valid. They base such rulings on the principle that a state law that violates the U. S. Constitution is invalid. They also decide the constitutionality of state laws under state constitutions. If, however, state constitutions contradict the U. S.

Constitution, or any other national statute, the state constitution must yield. The highest state court to decide such issues is the state supreme court. While judicial review of state laws is clearly outlined in the supremacy clause, the Framers of the U. S. Constitution did not resolve the question of whether the federal courts should have this power over congressional and executive acts. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review. But the key question was whether the Court had the power to strike down an act of Congress.

In 1803, the issue was settled in Marbury v. Madison, 5 U. S. (1 Cranch) 137, 2 L. Ed. 60, when the Supreme Court, for the first time, ruled an act of Congress unconstitutional. In Marbury, Chief Justice John Marshall reasoned that since it is the duty of a court in a lawsuit to declare the law, and since the Constitution is the supreme law of the land, where a rule of statutory law conflicts with a rule of the Constitution, then the law of the Constitution must prevail. Marshall asserted that it is “emphatically the province and duty of the judicial department, to say what the law is. Having established the power of judicial review, the Supreme Court applied it only once prior to the Civil War, in 1857, ruling the Missouri compromise of 1820 unconstitutional in Dred Scott v. Sandford, 60 U. S. (19 How. ) 393, 15 L. Ed. 691. During the same period, the Court invalidated several state laws that came in conflict with the Constitution. In McCulloch v. Maryland, 17 U. S. 316, 4 L. Ed. 579 (1819), the Court invalidated a state’s attempt to tax a branch of the bank of the United States. in Gibbons v. Ogden, 22 U. S. 1, 6 L. Ed. 3 (1824), the Court struck down a New York law granting a monopoly to a steamboat company, saying that the state law conflicted with a federal law granting a license to another company. In addition to invalidating state laws, the Marshall Court established the authority to overrule decisions of the highest state courts. In Martin v. Hunter’s Lessee, 14 U. S. 304, 4 L. Ed. 97 (1816), the Court referred to the supremacy clause to assert that its appellate power extended to state courts. Following the Civil War, the Supreme Court grew concerned that the recently-passed fourteenth amendment ould give the federal government too much power over state governments and individual rights. Therefore, it used the power of judicial review to strike down federal civil rights laws that sought to address in the former Confederate states. Beginning in 1890, the Court became embroiled in political controversy when it exercised its power of judicial review to limit government regulation of business. In Chicago, Milwaukee, & St. Paul Railroad Co. v. Minnesota, 134 U. S. 418, 10 S. Ct. 462, 33 L. Ed. 970 (1890), the Court struck down a state law establishing a commission to set railroad rates.

This case was the first of many where the Court applied the doctrine of substantive due process to invalidate state and federal legislation that regulated business. Substantive due process was a vague concept that required legislation to be fair, reasonable, and just in its content. Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was conclusive upon the courts, 72 it had treated these questions as justiciable, although it had uniformly rejected them on the merits.

In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller. This case came upon a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the proposed child labor amendment to the Constitution to the effect that it had been adopted by the Kansas Senate.

The attempted ratification was assailed on three grounds: (1) that the amendment had been previously rejected by the state legislature; (2) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Kansas Senate in favor of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four members of the Court.

The majority ruled that the plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without an agreement with regard to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process ”is ‘political’ in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point. ‘ In an opinion reported as ”the opinion of the Court,” but in which it appears that only two Justices joined Chief Justice Hughes, who wrote it, it was declared that the writ of mandamus was properly denied because the question whether a reasonable time had elapsed since submission of the proposal was a non-justiciable political question, the kinds of considerations entering into deciding being fit for Congress to evaluate, and the question of the effect of a previous rejection upon ratification was similarly non-justiciable because the 1868 Fourteenth Amendment precedent of congressional determination ”has been accepted. ‘ But with respect to the contention that the lieutenant governor should not have been permitted to cast the deciding vote in favor of ratification, the Court found itself evenly divided, thus accepting the judgment of the Kansas Supreme Court that the state officials had acted validly. However, the unexplained decision by Chief Justice Hughes and his two concurring Justices that the issue of the lieutenant’ governor’s vote was justiciable indicates at the least that their position was in disagreement with the view of the other four Justices in the majority that all questions surrounding constitutional amendments are non-justiciable.

However, Coleman does stand as authority for the proposition that at least some decisions with respect to the proposal and ratifications of constitutional amendments are exclusively within the purview of Congress, either because they are textually committed to Congress or because the courts lack adequate criteria of determination to pass on them. But to what extent the political question doctrine encompasses the amendment process and what the standards may be to resolve that particular issue remain elusive of answers. CONCLUSION:

The Supreme Court of India has evolved certain norms and principles with regard to judicial review, they are

  1. There is a presumption in favor of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt, the onus to prove that it is unconstitutional lies completely on the person who challenges it.
  2. Where the validity of a statute is questioned and there are two different interpretations, the one that makes the law valid shall be considered over the other.
  3. The Court will not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it.
  4. The Court will not decide a larger constitutional question than is required by the case before it.

The above points are to be kept in mind relating to the filing of cases and to the delivery of justice in cases relating to judicial review. The spirit of law thus is held under rein by the word of law. Given the freedom to interpret; this interpretation might deteriorate into anarchy.


  1. Basu, Durga Das Commentary on the Constitution of India-Calcutta: Debidas Basu
  2. Basu, Durga Das Introduction to the Constitution of India-Agra: Wadhwa and Company Law Publishers.
  3. Comparing Constitutions, Oxford University Press.
  4. Jain M. P. Indian Constitutional Law Vol. I, II.
  5. Pande, Prof. G. S. Constitutional Law of India-Jaipur: University Book House (P) Ltd.
  6. Pandey, J. N. Constitutional Law of India-Allahabad: Central Law Agency.
  7. Rai, Kailash Constitutional Law of India-Allahabad: Central Law Publications.
  8. Vicki C. Jackson and Mark Tushnet Defining the Field Of Comparative Constitutional Law, Westport.
  9. Vidya Bhushan, Vishnoo Bhagwan, Vishnoo World constitutions Sterling

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Various Ways in Which Judicial Review Can Be Done in India and the US. (2019, May 01). Retrieved from