Judicial review

Judicial review: a comparative analysis in USA, UK and India

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This blog is written by Swastika Debbarma, a student of LLM in Lovely Professional University, Phagwara (Punjab). This blog deals with Judicial review: a comparative analysis in USA, UK and India. 

Introduction

Judicial Review is a method of court process that takes place in the administrative Court and involves a judge reviewing the legality of any governmental/ state action. It’s the exertion of the Court’s inherent power to work out whether an action is lawful or not to grant appropriate relief. The Indian parliament has embraced the US Constitution’s judicial review system, in which the parliament’s powers are not ultimate, and power is divided between the Centre and the states. The concept of judicial review is stronger in USA and India as compared to the UK in a certain perspective. Judicial review is not fully recognized in the UK, the acts of Parliament are unchallengeable. Whereas, the US Supreme court efficiently elaborated the power of judicial review to review the constitutionality or unconstitutionality of the acts of congress as well as the act of state legislature.

Origin of Judicial Review

The judicial review basically originated in the USA. It was propounded for the first time in the historic landmark case of Marbury vs. Madison 1803 by the leadership of John Marshall the chief justice of the American Supreme Court. In which the power of the Supreme court was established by limiting the power of the congressional by declaring the legislation unconstitutional. In India, on the other hand, the constitution itself confers the power of judicial review on the judiciary both the supreme court and high court.

Judicial Review in India

Judicial review in India is the power of a court to refuse to enforce a law or government regulation that, the Constitution of India is the supreme law of the land. The Supreme Court acts as a protector of the Constitution. After India’s independence from Britain in 1947. The Indian Constitution was drafted and came into existence on January 26, 1950. It is the longest written constitution in the world, while the Constitution of the United States of America is regarded as one of the oldest democratic written constitutions in the world and has also influenced the constitutions of other countries particularly those of Asian countries. India is no exception to this.

Shankari Prasad v. Union of India

 It was the first case of the Indian Constitution. The validity of the Constitution (1st Amendment) Act, 1951, curtailing the “Right to Property” guaranteed by Art. 31 was challenged. The argument against the validity of (the 1st Amendment) was that Art. 13 prohibits the enactment of a law infringing and abrogating the fundamental right

The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is contained in Art. 368 and that the word ‘law’ in Art. 13 (2) includes only an ordinary law made in the exercise of the legislative powers and does not include a Constitutional amendment which is made in the exercise of constituent power.

Judicial Review in USA

The Constitution of America, which is written and federally democratic in spirit, is based on the Rule of law. It Provides for the separation of powers with checks and balances. One of the fundamental processes in the America to determine the validity of law is Judicial Review. The Constitution of the USA does not provide express provisions for judicial review but it is incorporated in the Articles III and IV. Judicial review is a limitation on popular government and is a part of the Constitution Scheme of America.

LANDMARK CASE OF MARBURY v. MADISON

The power of judicial review was again used with judicial authority to declare the Act of Congress unconstitutional in 1803 the historic landmark case of Marbury v. Madison.  When President John Adams did not win a second term election in 1801, he utilized the last few days of his administration to make a substantial number of political arrangements and misused them. At the point when the new president ‘Thomas Jefferson’ took the office, he told his Secretary of State ‘James Madison, not to convey the official printed material to the administration authorities who had been named by Adams. In this way, the administration authorities, including William Marbury, were denied their new employment. Thus, William Marbury filed a writ petition of Mandamus in the U.S. Supreme Court to compel.

Judicial review in UK

The Doctrine of Judicial Review was prevalent in England. Dr Bonham Case was decided in 1610 by Lord Coke and was the foundation of judicial review in England. But in the case of City of London v. Wood Chief Justice Holt remarked that “An Act of Parliament can do no wrong, though it may do several things that look pretty odd.” This remark establishes the ‘Doctrine of Parliamentary Sovereignty’ which means that the court has no power to determine the legality of Parliamentary enactments. In the U.K. there is a system which is based on Legislative Supremacy and Parliamentary Sovereignty. Earlier, there was no scope for judicial review in the U.K., but after the formation of the European Convention on Human Rights, the scope of judicial review became wider. The enactment of the Human Rights Act, of 1998 also requires domestic Courts to protect the rights of individuals. In the U.K., there is no written Constitution and Parliamentary Supremacy is the foundation. The principle of “Parliamentary Sovereignty” dominates the constitutional democracy in the U.K.

Judicial Review in India, USA and UK- A Comparison

  • In India, the Power of judicial review can be used in three dimensions such as judicial review of Constitutional Amendments, Legislative Acts and Administrative Acts, whereas US Constitution is very rigid in nature therefore review of Constitutional amendments in very rarely used, Supreme Court of US has the power to scrutinize the Legislative Act and Administrative Act which is contrary to the constitution. While in the UK there is no scope to check the validity of Legislative acts of Parliament, secondary legislations are subject to judicial review.
  • In India, there is specific and extensive provisions of judicial review in the Constitution of India such as Article 13,32,131-136,143,226 227,246,372. Though the term judicial review is not mentioned in these Articles it is implicit in these Articles. Whereas US judicial review IV, V incorporates judicial power of the Court, and Constitutional supremacy and all the laws are subject to the constitution, therefore, it is implicit in nature. Judicial review in the US is the formulation by the court. In the UK, there is an unwritten Constitution, there is no express provision for judicial review, and it is totally dependent on the discretion of the Court.
  • In India, Article 13 provides for “Judicial Review of pre-Constitutional as well as post-Constitutional laws” Whereas there is no such provision for judicial review pre- Constitutional laws in the UK and USA.
  • In India, courts formulated various doctrines like the doctrine of severability and the doctrine of eclipse etc, these doctrines are also implicitly incorporated in the US. But in the UK, there is no scope for these doctrines due to the absence of a judicial review of legislative Acts.

Suggestion

Judicial Review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. Judicial Review can be understood by analysing the basic different legal systems of such different countries like the USA Constitutional supremacy prevails and the same goes with India, where the Doctrine of Separation of Powers on the basic structure of the Constitution while the instance in the UK is common law country, there is a parliamentary Supremacy, thus the legislative Acts is not permitted in judicial review.

Conclusion

Concluding the constitutional principles of the procedural requirements, the traditional grounds of the challenge of the remedies of judicial review are developed. Judicial review has been developed to protect against individual rights including those incorporated by the Human Rights Act, of 1988, protecting against any arbitrary action and any potential actions that may be created by the abuse of executive power. The scope of review is wider in India as compared to USA and UK. The constitution of the USA is concise and expression in general in nature. Whereas in India constitution is flexible in nature. Whereas in the UK, there is no written constitution and hence the judicial review is limited in nature.

References

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