A COMPARATIVE STUDY OF THE NATURE OF THE JUDICIAL

REVIEWS BETWEEN USA AND INDIA AND ITS DISTINCTIVE

FEATURES

Submitted by:

Shreha Shah 190401417036

Hiranmayi Rajeev 190401417011

Shelika Laller 190401417051

 BA LLB (HONS.)

2019-2024

Course Teacher: Prof. Shreshth Bhatnagar

Alliance School of Law

Alliance University, Bengaluru
21/04/2021

DECLARATION

I declare that the paper entitled "A COMPARATIVE STUDY OF THE NATURE OF THE
JUDICIAL SYSTEM BETWEEN USA AND INDIA AND ITS DISTINCTIVE FEATURES"
has been prepared by me and it is the original work carried out by me for the fulfillment of the
requirements of B.A., LL.B (Hons.) degree program of School of Law, Alliance University.
No part of this seminar paper has already formed the basis for any examination/evaluation
requirement of any degree.

Signature and Name of the Student:

SHREHA SHAH

Registration Number: 190401417036

I declare that the paper entitled "A COMPARATIVE STUDY OF THE NATURE OF THE
JUDICIAL SYSTEM BETWEEN USA AND INDIA AND ITS DISTINCTIVE FEATURES"
has been prepared by me and it is the original work carried out by me for the fulfillment of the
requirements of B.A., LL.B (Hons.) degree program of School of Law, Alliance University. No
part of this seminar paper has already formed the basis for any examination/evaluation
requirement of any degree.

Signature and Name of the Student

 HIRANMAYI RAJEEV

Registration Number: 190401417011

I declare that the paper entitled "A COMPARATIVE STUDY OF THE NATURE OF THE
JUDICIAL SYSTEM BETWEEN USA AND INDIA AND ITS DISTINCTIVE FEATURES"
has been prepared by me and it is the original work carried out by me for the fulfillment of the
requirements of B.A., LL.B (Hons.) degree program of School of Law, Alliance University. No
part of this seminar paper has already formed the basis for any examination/evaluation
requirement of any degree.

Signature and Name of the student

 SHELIKA LALLER

Registration Number: 190401417051

Batch:
2019-2024

School of Law

Alliance University, Bengaluru.

Date: 21/04/2021

ABSTRACT

Since there is a long tradition of judicial review of executive agency acts that does not entail
either that courts have the authority to find such actions unconstitutional or that the country has
a written constitution, the term judicial review may be more aptly defined as "constitutional
review." The judiciary plays a critical role in safeguarding the fundamental principles that our
forefathers founded. They attempt to reverse the damage that has been done by the legislature
and the executive, as well as to provide every person with what the Constitution has promised
under the Directive Principles of State Policy. All of this is possible because of the judicial
review authority.

Much of this did not happen overnight; it took 50 years to get to where we are today, and if
anybody feels it has been a smooth ride without any bumps, they are mistaken. The judiciary
has been the target of many politicians, technocrats, academicians, lawyers, and others. The
principle of division of powers is an essential component of the rule of law, which is a
fundamental element of the Indian Constitution, and the right of judicial review is an essential
component of that concept. Any State conduct must be put to the test of the rule of law, which
is done by the courts when the occasion occurs due to a question asked in that regard. In the
case of the High Courts, the right of Judicial Review is enshrined in Articles 226 and 227 of the
Constitution. In terms of the Supreme Court's Articles 32 and 136 of the Constitution, the
Indian judiciary has come to regulate any part of legislative and public activities by judicial
examination. The purpose of this paper is to first understand the meaning and working of
judicial review, secondly to compare and understand the working of judicial review in the US
and India, and lastly, to understand the problems of judicial review.

The methods that will be used to complete this research paper are by using secondary resources
such as the internet and multiple articles. Due to the current pandemic situation, real-life, hand-
on-hand data collection is impossible hence why this paper is going to be based on the already
existing data collected.

Keywords: constitution, judicial review, Article 31, Article 136, political, High courts.

TABLE OF CONTENTS

1. Introduction
1.1 Introduction ----------------------------------------------------------------------------------01
1.2 Research Question --------------------------------------------------------------------------02
1.3 Literature Review ---------------------------------------------------------------------------02
1.4 Scope and Objectives -----------------------------------------------------------------------04
1.5 Research Methodology ---------------------------------------------------------------------04
2. Judicial Review in India --------------------------------------------------------------------05
 2.1 Doctrine of Eclipse --------------------------------------------------------------------------06
2.2 Doctrine of Severability --------------------------------------------------------------------06
2.3 Doctrine of Prospective Over-ruling ------------------------------------------------------07
3. Judicial Review of Constitutional Amendments-----------------------------------08

4. Judicial Review of Parliamentary and State Legislative Action ------------10

5. Present Scenario of judicial Review in India ----------------------------------------12

6. Judicial Review in USA ----------------------------------------------------------------------13

7. Conclusion ----------------------------------------------------------------------------------------17

8. References-----------------------------------------------------------------------------------------19
 1. INTRODUCTION

1.1Introduction
In this paper by the concept of judicial review, we mean the force of the legal executive to decide
if a law passed by the parliament, or any law ordered by a state assembly or any arrangement in
the constitution, or some other public guideline having the power of law, is in consonance with
the constitution. In the event that it isn't, the court won't offer impact to the state being referred
to. In deciding the legality of the enactment, the court isn't worried about the intelligence,
experience or strategy of enactment. In the expressions of Chief Justice Marshall, "It neither
affirms nor censures any administrative arrangement. Its fragile and troublesome office is to
learn and pronounce whether the enactment is as per, or in contradiction of, the arrangement of
the Constitution; and having carried out that its responsibility closes." Even the court considers
the Act incautious and hurtful to both public and private interests; it is its commitment to support
the demonstration gave it is inside the designated power.
Judicial Review can be said as the act of passing upon the lawfulness of authoritative, chief, and
other administrative activity is as generally acknowledged today as it has at any point been. The
hypothetical support on the concept however, in any case, keeps on being inconvenient and
subtle. "The methodology of legal survey" and that it "is in struggle with the basic rule of
democratic system dominant part rule under states of political opportunity' is being questioned.
The power of judicial review, to be practiced by some piece of the public authority, is verifiable
in the origination of a composed constitution assigning restricted forces. A composed
constitution would advance disunity instead of request in the public eye if there were no
acknowledged position to interpret it, at any rate in instances of clashing activity by various parts
of government or of intrinsically unapproved administrative activity against people. The
restriction and division of forces, on the off chance that they are to endure, require a method for
autonomous intervention and development to accommodate the unavoidable disagreements
regarding the limits of sacred force which emerge during the time spent government.

1
1.2 Research Question

Does judicial review have a democratic justification?

1.3 Literature Review

1.  Arun K. Thiruvengadam. 2017. “The Constitution of India: A Contextual Analysis”1

The Constitution of India, by Arun K. Thiruvengadam, is part of the ‘Judicial Systems of the
World' series and offers a succinct guide to the Indian constitutional system, with
observations not just into its origins but also into the political and legal events that have
influenced its development. The Indian Constitution's position in maintaining one of the
world's largest pluralist democracies, as well as Thiruvengadam's expertise in South Asian
constitutionalism, render this a fascinating read. Instead of considering the Indian
Constitution as a stand-alone doctrine, it considers the effect of diplomatic bargains and
extra-legal trends. The book deviates from the prevailing trend in legal scholarship to
concentrate on particular cases by relying on the broader socio-political background up until
May 2017. It further addresses the obstacles that the constitutional order has faced over the
course of its almost seven-decade existence. The Indian Constitution is divided into seven
chapters with an introduction and conclusion. It follows the evolution of ideas and ideals
when the Constitution was drafted. The author presents prehistory, colonial experience, and
applicable constitutional provisions relating to the main topic at the beginning of each
chapter.

Thiruvengadam emphasizes the "living essence of the document" in the book to "present the
Indian Constitution as a forum for ongoing contestations" (4). (4). He examines it critically,
pointing out the ambiguities and differences. Instead of restricting the spectrum of his study
to nostalgia concerning India's independence year, the author refers to 1947 and 1991 as two
1
Thiruvengadam. K.A, ‘The Constitution of India: A Contextual Analysis’ (2017) <
https://www.google.co.in/books/edition/The_Constitution_of_India/-NQ_DwAAQBAJ?
hl=en&gbpv=1&printsec=frontcover>

2
 pivotal historical moments, with the latter representing the implementation of policies that
contributed to significant changes in the Indian economy and polity. Furthermore, the author
draws attention to understudied portions of the Constitution's text, especially those dealing
with the institutions of government. This is, without a doubt, a one-of-a-kind approach to the
current literature. The CAG and the EC are described as "unusual" institutions by
Thiruvengadam because they have a reputation for "safeguarding constitutional and
democratic principles in contemporary India" (137). His research examines the influence of
successive government tenures on these institutions, reflecting the complex existence of these
institutions. He attempts to show how such transformations can be achieved informally
without changing the Constitution in these pages, such as the importance that
decentralization and municipal councils have acquired over time.

2. Fayaz Ahmed Bhat. 2020. “Doctrine of Judicial Review in India: A Judicial

Perspective”2

In the article provided by Fayaz. A. Bhat, he states that Judicial Review is the ability of
courts to rule on the constitutionality of government statutory and administrative acts that
come under their jurisdiction. Its roots can be traced back to the principle of restricted
government and the theory of two statutes, such as an ordinary law and a supreme law,
for instance the Constitution. When the Indian Legislature, Executive, and Judiciary have
damaged fundamental principles and denied Indian citizens’ rights guaranteed by the
Indian Constitution. In such situations, judicial oversight plays a critical part in protecting
people's interests as a protector. The judiciary, on the other hand, has had to do with a
slew of technocrats, judges, legislators, and academics. He also went on to discuss the
evolution of judicial review, stating that the Supreme Court of the United States first
proposed the doctrine of judicial review. The United States Constitution did not have an
explicit clause for judicial review at the time, but the Supreme Court of the United States
assumed it in the landmark case of Marbury vs Madison 2.  According to Chief Justice

2
Bhat. A. F, ‘Doctrine of Judicial Review in India: A Judicial Perspective’ (2020)
https://www.latestlaws.com/articles/doctrine-of-judicial-review-in-india-a-judicial-perspective-by-fayaz-ahmed-
bhat/#:~:text=Article%2013%20in%20fact%20provides,part%203rd%20of%20the%20constitution.

3
 Marshall, "The constitution is either a greater supreme statute that cannot be changed by
ordinary means, or it is on par with ordinary parliamentary acts that can be changed as
the legislature so desires. Certainly, all those who drafted written constitutions consider
them to be the nation's foundational and supreme statute, and any other government's
theory must be that every act of the legislature that is inconsistent with the constitution is
invalid. It is emphatically the province and responsibility of the judicial department to
say what the law is "

1.4Scope and Objectives

a. To understand the meaning and working of judicial review.

b. To compare and understand the working of judicial review in the US and India.
c. To understand the problems of judicial review.

1.5 Research Methodology

The methods that will be used in order to complete this research paper is by using secondary
resources such as the internet and multiple of articles. Due to the current pandemic situation a
real life, hand on hand data collection is impossible hence why this paper is going to be based on
the already existing data collected

4
 2. JUDICIAL REVIEW IN INDIA

Judicial review is the authority of the court to keep an effective system to keep a balance
between the working of the legislature and the executive. The main agenda of judicial review is o
avoid the abuse of power and everyone gets a fair and equal treatment. It also ensures to give
relief for the aggrieved party. Above all, the judicial review ensures that there are no statues
which are repugnant to the Indian Constitution enforced in the Court of Law3.
The Indian Constitution plays an important role when it comes to law in India. There is no
specific provision for the judicial review in the Indian Constitution, but the Doctrine of judicial
review acts as one of the basic features of the Indian Constitution and plays a vital role.
In the Indian context, the concept of judicial review came through the Rule of Law. There were
some restrictions put forward on the power of Governor General for evading laws by the
Government of India Act, 1858 and The Indian Council Act, 1861. But no such provisions were
included under judicial review.
In the case of Emperor v. Burah4, the court held that the aggrieved party should be given the
right to challenge or ensure the constitutionality of any legislative Act that has been enacted by
the Governor General in the excess of the kind of power that is been given to him by the very
Parliament. The courts started considering and accepting the idea of judicial review in the Indian
courts after this case in 1877, but with some limitations.
In the case of Annie Besant v. Government of Madras 5, it was held that the powers of the
Parliament and the Legislative different and if there is any enactment of the legislature excess to
their delegated power or if it is violating the limitations put by the Parliament then those will be
considered void.
The usage of Judicial review of pre-constitutional laws and post constitutional laws are under
Article 13 of the Indian Constitution. This article includes various important doctrines like
Doctrine of Eclipse, Doctrine of Colorable legislation, Doctrine of Pith and Substance and the
Doctrine of Severability. Other provisions in the constitution for judicial review are articles 32,

3
Justice CK Thakkar & Justice Arijit Pasayat, Judicial Review of Legislative Acts 116 (2d ed. Lexis Nexis
Butterworths Wadhwa, 2009).
4
Emperor v. Burah, (1877) 3 ILR 63 (Cal).
5
Annie Besant v. Government of Madras, (1918) AIR 1210 (Mad).

5
143, 227, 245, 131-136, 226, 372. The Supreme Court and High Court’s power are under Article
226 and Article 32 of the Indian Constitution. According to these articles, the court can declare
any law unconstitutional which is in inconsistent or violates the Part 3 of the Constitution.

2.1 Doctrine of Eclipse

This tenet applies to the instance of a pre constitution resolution. Under Article 13(1), all
Pre-Constitution rules which are conflicting to Part III of the Constitution become
unenforceable and illegal after the authorization of the Constitution. Along these lines,
when such resolutions were established, they were completely substantial and
employable. They become obscured because of Article 13 and lost their legitimacy. This
is called Doctrine of Eclipse. In the event that the protected boycott is eliminated, the
resolution turns out to be liberated from overshadow and becomes enforceable once
more.

In Bhikaji Narain Dharkras v. Province of M. P 6, a current State law approved the State
Government to prohibit all the private engine transport administrators from the field of
transport business. A piece of this law got void on the initiation of the Constitution as it
encroached the arrangements of Article 19 (1) and couldn't be defended under the
arrangements of Article 19 (6) of the Constitution. First Amendment Act, 1951 altered
the Article 19 (6) and this correction allowed the Government to hoard any business. The
Supreme Court held that after the change of proviso (6) of Art. 19, the Constitutional
obstruction was taken out and the condemned Act stopped to be illegal and got usable
and enforceable.

2.2 Doctrine of Severability

Article 13 of the Indian Constitution, the words "to the degree of negation" are the
premise of Doctrine of Severability. This precept specifies that the court can isolate the
culpable part unlawful of the criticized enactment from the remainder of its enactment.
Different pieces of the enactment will stay usable, if that is conceivable. On the off

6
Bhikaji Narain Dharkras v. State of M.P., (1955) 2 SCR 589

6
 chance that the legitimate and invalid parts are so inseparably stirred up that they can't be
isolated the whole arrangement is held to be void.

In A.K. Gopalan v. Province of Madras 7, segment 14 of the Prevention Detention Act

was discovered to be infringing upon Article 14 of the Constitution. It was held by the
Supreme Court that it is Section 14 of the Act which is to be struck down not the Act all
in all. It was likewise held that the exclusion of Section 14 of the Act won't change the
object of the Act and henceforth it is severable. The Supreme Court by applying the
principle of severability negated the denounced law.

2.3 Doctrine of Prospective over-ruling

The essential significance of imminent over-administering is to decipher a prior choice as
it were to suit the current day needs, however so as to not make a limiting impact upon
the gatherings to the first case or different gatherings limited by the point of reference.
The utilization of this regulation overrules a prior set down point of reference with impact
restricted to future cases and every one of the occasions that happened before it is limited
by the old point of reference itself. In easier terms it implies that the court is setting out
another law for what's to come. This teaching was propounded in India on account of
Golak Nath v. Territory of Punjab8. For this situation the court overruled the choices set
down in Sajjan Singh9 and Shankari Prasad's10 cases and propounded the Doctrine of
Prospective Overruling. The Judges of Supreme Court of India set out their view on this
tenet in a considerable manner, by saying "The convention of imminent overruling is an
advanced regulation appropriate for a quick society." The Supreme Court additionally
held that this choice will have just planned activity and thusly, the primary, fourth and
nineteenth corrections will keep on being substantial.

In the Indian Constitution, Judicial Review is unequivocally given in three

measurements; Judicial Review of Constitutional Amendments, Judicial Review of
7
A.K. Gopalan v. State of Madras, (1950) SC 27
8
Golak Nath v. State of Punjab, AIR 1967 S.C. 1643
9
Sajjan Singh v. Rajasthan, (1965) 1 S.C.R. 933
10
Shankari Prasad v. Union of India, AIR 1951 S.C. 455

7
 Parliament and State Legislation and furthermore Judicial Review of Administrative
activities of Executives.

3. JUDICIAL REVIEW OF CONSTITUTIONAL AMMENDMENTS

Amendments in the Constitution are extremely inflexible in nature. Parliament has the
preeminent ability to alter the Constitution yet can't repeal its essential construction. There was a
contention between the Supreme Court and Parliament seeing Constitutional Amendment with
regards to if crucial rights are amendable under Article 368? The inquiry came for thought of the
Supreme Court in Shankari Prasad v. Association of India11.
It was the main case on amenability of the Constitution. The legitimacy of the Constitution (first
Amendment) Act, 1951, shortening the "Right to Property" ensured by Art. 31 was tested. The
contention against the legitimacy of (first Amendment) was that Art. 13 forbids institution of a
law encroaching and revoking the key rights, that the word 'law' in Art 13 would incorporate"
any law", at that point a law altering the constitution and in this way, the legitimacy of such a
law could be judged and investigated concerning the crucial rights which it couldn't encroach.
It was contended that the "State in Article 12 included Parliament and "law" in Art. 13 (2),
thusly, should incorporate sacred revision". The Supreme Court, nonetheless, dismissed the
above contention and held that the ability to change the Constitution including the essential
rights is contained in Art. 368 and that the word 'law' in Art. 13 (2) incorporates just a standard
law made in exercise of the administrative powers and does exclude Constitutional revision
which is made in exercise of constituent force. Subsequently, a Constitutional revision will be
substantial regardless of whether it compresses or takes any of the key fundamental rights12.
The minority perspective on five out of eleven adjudicators was that the word 'law' in Art. 13(2)
alludes to just standard law and not an established alteration and henceforth Shankari Prasad and
Sajjan Singh case have been properly settled. As indicated by these cases, Article 368 managed

11
Shankari Prasad v. Union of India, AIR 1951 S.C. 455
12
MP Singh, V.N. Shukla’s Constitution of India 999 (11th ed., Eastern Book Company 2008).

8
the strategy of revising the constitution as well as contained the ability to change the
constitution13.
By and by the Supreme Court was called upon to consider the legitimacy of the twenty fourth,
twenty fifth and twenty 10th amendment in the popular case Keshavananda Bharati v. Province
of Kerala14. For this situation the candidate had tested the legitimacy of Kerala Land Reforms
Act 1963. However, during the pendency of the request the Kerala Act was changed in 1971 and
was put in the Ninth Schedule by the Twenty Ninth Amendment Act. The applicant tested the
legitimacy of twenty fourth, twenty fifth, and twenty 10th amendment to the Constitution and
further the inquiry was included concerning what degree the revising power has been given by
Article 368 of the Constitution? The Supreme Court overruled the Golak Nath's case and held
that "Under Art. 368 Parliament can change the central rights yet can't take or compress the
Basic Structure of the Constitution". This judgment propounded the "Hypothesis of Basic
Structure: A Limitation on Amending Power." It was figured by the Supreme Court through
Doctrine of Judicial Review.
in Indira Nehru Gandhi v. Raj Narayan 15, the change was made to approve with review impact
the appointment of the at that point Prime Minister which was put to the side by the Allahabad
High Court. The Supreme Court struck down proviso (4) of Art.329-A which was the culpable
statement embedded by 39th Amendment to approve the political decision with review impact.
Khanna J. struck down the provision on the ground that "it abused the free and reasonable
political race which was a fundamental propose of majority rule government which thus was an
essential construction of the constitution".
Through these cases Supreme Court investigated the legitimacy of Constitutional Amendment
Law by utilizing the Doctrine of Judicial Review.

4. JUDICIAL REVIEW OF PARLIAMENTARY AND STATE

LEGISLATIVE ACTIONS
13
DR. J.N. Pandey, The Constitutional Law of India (49th ed., Central Law Agency 2012).
14
Keshavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461
15
Indira Nehru Gandhi v. Raj Narayan, AIR 1980 S.C. 1789

9
The Indian constitution grants Parliament and state legislatures legislative rights under Articles
245 and 246.
“Subject to the provisions of the constitution, the parliament may make any law for the whole or
any part of the territories of India, and a State Legislature may make any law for the whole or
any part of the state,”16 according to Article 245 (1).

The phrase "according to the rules of the constitution" places restrictions on Parliament and state
legislatures' ability to pass legislation. Judicial Review of Governmental Decisions is summed up
in these terms. It means the law adheres to legislative constraints.
These terms give the courts the authority to examine laws for constitutionality.
Under Art. 141, which contains the "Doctrine of Precedent, 17" the Supreme Court has supreme
authority to enforce its own views on any conflicted issue which has binding force. Via legal
rulings, the Supreme Court makes some interesting remarks about Parliament and state
legislatures' legislative acts.
The constitutional validity of the Administrative Tribunal Act, 1985, was questioned in SP
Sampat Kumar v. Union of India18 because the impugned Act had destroyed judicial
examination, which was an integral function of the constitution, by removing the authority of
High Courts under Art. 226 and 227 in service matters.
The Supreme Court ruled that, while the Act prohibits the High Courts from exercising judicial
oversight in service cases, it does not exclude the Supreme Court from exercising its authority
under Art. 32 and 136. Furthermore, “a statute enacted under Art. 323-A calling for the absence
of the High Courts' authority shall have an appropriate remedy.”

16
Parliament may make laws for the whole or any part of India's territory, and state legislatures may make laws for
the whole or any part of their respective states, according to the provisions of this Constitution.
17
In cases where a related or equivalent question of law is brought before the judiciary, the concept of precedents
makes the judgments of the higher courts generally binding on the lower courts. The theory of precedents is very
valuable because it gives clarity.
18
(1987) AIR 386

10
A viable alternative administrative framework for judicial review authority Only if an alternative
successful administrative structure or jurisdiction is given can judicial review, which is an
integral function of the constitution, be taken away from the specific area.

The petitioner recently questioned the numerous Central and State laws included in the Ninth
Schedule, including the Tamil Nadu Reservation Act, in I.R. Coelho v. State of Tamil Nadu19.
“Any legislation put in the Ninth Schedule after April 24, 1973, when Keshvananda Bharati's
case judgment was delivered, would be open to challenge,” the Nine Judges Bench said.
The legality of every Ninth Schedule law has been affirmed by the Supreme Court, and it will
not be subject to challenge again, but if a law is held to be a breach of fundamental rights
enshrined in the Ninth Schedule after the judgment date of Keshvananda Bharati's case, such a
violation will be open to challenge on the grounds that it destroys or harms the fundamental
rights enshrined in the Ninth Schedule, such a violation will be open to challenge on the grounds
that it jeopardizes or jeopardizes the fundamental foundation of the constitution.” “Judicial
Review of Legislative Acts is Important,” the Supreme Court said.

5. PRESENT SCENARIO OF JUDICIAL REVIEW IN INDIA

19
(1999) 7 SCC 580

11
The Supreme Court plays a critical part in interpreting constitutional provisions, and the
principle of judicial review has since become a cornerstone of constitutional law. The Supreme
Court examined the clauses of the Companies Act, 1956, and found some of them to be ultra
vires in Madras Bar Association v. Union of India20. The complainant, in this case, questioned
the constitutions of the NCLT and NCLAT, as well as the formation of the Committee and the
selection of judicial and technical members. Sections 409(3)(a), 409(3)(c), 411(3), and 412(2)
are the provisions that apply to you provide for the establishment of a corporate law management
board of directors. The decision was upheld by the Supreme Court.

NCLT21 and NCLAT have also been shown to be correct. However, the above-mentioned clauses
were ruled ultra vires and held to be unconstitutional because any organization serving a judicial
role should be composed of members with judicial experience and qualifications, and thus
judicial members were to outnumber technical members to preserve the constitution's
fundamental feature.
The Supreme Court of India examines the legality of laws in this manner, using the doctrine of
judicial review.

6. JUDICIAL REVIEW IN USA

20
WRIT PETITION (C) NO. 1072 OF 2013

21
National company law tribunal

12
The Rule of Law22 is the foundation of the American Constitution, which is written and federal
democratic in nature. It establishes the division of powers, as well as checks and balances, which
are the heart and soul of the system. Judicial Review is a central method in America for
determining the legality of laws. In the United States, the judiciary can review Congress's and
the President's acts, and if they violate the Constitution, the judiciary can declare them null and
void. While the United States Constitution does not expressly allow for judicial review, it is
implicitly included in Articles III and IV. According to Bernard Schwartz 23, "the core of the
judicial authority under the Constitution of America is the judgment on the matter of
constitutionality of a statutory Act." “Judicial oversight is a restraint on common democracy
and is a part of the Constitutional system of America,” wrote Justice Frankfurter24 in the
Minersville School District v. Gobitis25 case. The doctrine that the Constitution is the supreme
rule underpins the principle of judicial review.

The below are the key goals of judicial review in the United States:
1. Find statutes to be illegal if they are in violation of the Constitution.
2. To uphold valid statutes that have been declared unconstitutional.
3. To interpret the Constitution's rules in order to preserve and maintain its supremacy.
4. To prevent other government branches from encroaching on Congress' regulatory powers.
5. To monitor Congress's and state legislatures' actions to see if they are delegating important
legislative duties to the executive branch or if Congress is delegating its legislative functions to
state legislatures.

22
The rule of law is a philosophy that holds all individuals, organizations, and organizations liable to rules that have
been: Publicly promulgated. Equally strict. Adjudicated by a third party. Also, it is by universal human rights
principles.
23
Bernard Schwartz, ‘About Bernard L. Schwartz’ < https://www.bernardlschwartz.com/>

24
Felix Frankfurter was an American lawyer, scholar, and jurist who sat on the Supreme Court of the United States
as an Associate Justice. From 1939 to 1962, Frankfurter was a member of the Supreme Court, where he was a vocal
proponent of judicial restraint in the Court's decisions.

25
(1943) 127 A.LR. 1493

13
The case of Thomas Bonham v College of Physicians26 is said to be a significant contribution to
the American judicial review system. The doctrine announced in Coke's dictum found rich soil in
the United States and sprouted into such a robust development that it was implemented by the
US Supreme Court in the rulings of cases coming before it, according to Willis. The Supreme
Court of the United States, however, ruled in the United States v. Yale Todd27 that the Act of
Congress was unconstitutional. In Hylton v. United States28 in 1796, Chief Justice Chase said,
“It is appropriate for me to decide if the court legitimately possesses the authority to declare an
Act of the Congress unconstitutional on the basis that it is contrary to and in violation of the
Constitution, but if the courts have those powers, I am free to declare it but in a simple case.”
In the seminal landmark case of Marbury v. Madison29, the right of judicial review was once
again exercised with judicial force to find the Act of the 31 Congress unconstitutional. In this
situation, when President John Adams did not secure a second term in the 1801 Presidential
Election, he used the final days of his presidency to make a series of political deals. When the
new president (Thomas Jefferson) assumed office, he instructed his Secretary of State (James
Madison) not to deliver official written content to the administration officials that Adams had
appointed.
The administration officials, including William Marbury, were denied new jobs as a result of
this. In order to induce Madison to convey the commission, William Marbury petitioned the
United States Supreme Court for a writ of mandamus. The questions are as follows:
A. Does the Supreme Court have the authority to grant writs of mandamus in the first instance?
B. Is it possible for Congress to extend the Supreme Court's original authority beyond the limits
set out in Article III of the Constitution?
C. Does the Supreme Court have the power to amend legislation passed by Congress?

Chief Justice Marshal ruled that the court lacks the authority to grant Mandamus because the
court should have judicial jurisdiction to issue such a writ. Furthermore, the Supreme Court's

26
(1610) 8 Co Rep 114 

27
(1749) 15 Wash. & Lee L. Rev. 220

28
(1796) 3 U.S 171
29
(1803) 5. U.S 137

14
initial jurisdiction cannot be expanded outside the limits of Article III of the Constitution by
Congress. The Supreme Court has the power to review congressional actions to decide whether
or not they are legal. The Supreme Court has the inherent right to decide the legality of any
statute. Madison was denied the commission after the Supreme Court ruled Section 13 of the
Judiciary Act of 1789 unconstitutional and rejected the writ petition. The Supreme Court of the
United States described judicial review in this way.

Before this decision, the Supreme Court of the United States has not declared any intervention by
Congress unconstitutional with absolute judicial power. This case establishes the Supreme
Court's right of judicial review to decide the legality of any constitutional action taken by
Congress. Following the Marbury decision, judicial oversight grew dramatically. It strengthened
civil rights and personal liberty protections. The following are some of the important decisions:
There was a disagreement in McCulloch v. Maryland30 over the forces of federal and state rule.
In the state of Maryland, a bank called Bank of America was created by federal statute.
Following that, the state of Maryland passed a tax law that puts a tax on banks in relation to
related transactions. This was contested on the grounds that state law does not levy a tax on a
bank founded under federal law. The Court ruled that the state could not levy a tax on the Union
authority. The National Government was granted immunity by the court. The doctrine of
Instrumentalities Immunity was developed as a result of this decision by the United States
Supreme Court. President Truman ordered the seizure of the steel in Youngstown Sheet Tube
Co. v. Sawyer31 to escape the national adversity that existed at the time. As a result, the President
enacted legislation to steal all people's steel. The Court ruled, based on Justice Black's decision,
that this is the first case in which the Executive's statutory encroachment has been found illegal,
and that the Constitution should not grant lawmaking authority to Presidential or Military
oversight or control. The Current State of Judicial Review in the United States

The field of judicial appeal in the United States has expanded since the Marbury ruling. In Reed
v. Town of Gilbert32, Arizona, an ordinance was passed in Gilbert town prohibiting the display of

30
(1891) 17 U.S 316
31
(1952) 343 U.S 579
32
(2015) 576 U.S. 155

15
outdoor signs except for political signs, which were defined as designs intended to influence the
outcome of an election, ideological signs, which were defined as designs intended to
communicate ideas, and directional signs, which were defined as designs intended to direct
traffic. A church and its priest opposed the ordinance. On behalf of the plurality, Justice Clarence
Thomas said that the distinctions drawn the plurality, led by Justice Clarence Thomas, ruled that
the ordinance's distinctions were unconstitutional. Both content-based rule, it was held, needs the
same level of judicial oversight and scrutiny. The court went on to say that content-based rules
are unconstitutional as they are presumptively illegal because they target speech depending on its
communicative content, and they can only be justified if the government can show that they are
specifically designed to satisfy compelling state interests.

7. CONCLUSION

In India, judicial review has a broader reach than in the United States and the United Kingdom.
The United States Constitution is brief, and the terms and expressions used therein are abstract
and general. That is the world's most strict Constitution. The Indian Constitution, on the other
16
hand, is both strict and fluid, although it has several extensive rules and is the world's largest
constitution. The Indian Constitution uses precise and precise vocabulary and phrases. Since
there is no written constitution in the United Kingdom, the extent of judicial review is severely
restricted.

Judicial Review of Constitutional Amendments, Legislative Acts, and Administrative Acts are
three ways that judicial review can be used in India. Since the United States Constitution is so
static in nature, constitutional amendments are scarcely included. The Supreme Court of the
United States, on the other hand, has the authority to review legislative and administrative acts
that violate the Constitution. Although there is no way to verify the legality of Parliamentary acts
in the United Kingdom, secondary law is subject to judicial scrutiny. Acts of Parliament in the
United Kingdom cannot be questioned in any court on any grounds because Parliamentary
sovereignty dominates constitutional democracy.

In India and the United States, the Constitution is the supreme law of the country, and all
statutes are subject to it. Where a statute is found to be in breach of the Constitution, the legality
of the law will be challenged in court. In the United States, the word "Due Process of Law"
refers to the power of judicial appeal.

The Supreme Court of the United States uses this standard to determine the constitutionality of
statutory acts on both factual and procedural grounds. In India, the term "procedure created by
statute" is specifically described in Art 3 of the Constitution, which states that the Court may
only find actions invalid on substantive grounds. Since it is not the position of the judiciary in
India to make rules, the court can only interpret and decide the law. Judges of the United States,
on the other hand, make laws; they scrutinize them closely and may declare them
unconstitutional if they are deemed to be null.

The judiciary in India and the United States has extensive powers to examine and assess the
legality of legislation, while before the passage of the ECHR and the Human Rights Act, courts
in the United Kingdom had only a few powers to do so. However, in the current situation, the

17
position has shifted. The spectrum of judicial review in the United Kingdom has also been
expanded.

The purpose of the Rule of Law is for the judiciary to preserve Constitutional principles and
impose Constitutional limits, which means, among other things, that the exercise of powers by
the government, whether legislative, administrative, or any other jurisdiction, be conditioned by
the Constitution and the law.” It allows the court to keep the peace in the state. The courts defend
individual and collective interests by finding a statute unconstitutional. The most important
feature is to defend human rights, so judicial oversight can be expanded. Individual liberties and
equality can be bolstered by improving the judicial review process. The principle of judicial
review has often been questioned in political circles due to the Courts' rigid conduct. It should
not arise in any way, since the supremacy of the statute is upheld by the courts' understanding.

To answer the research question, whether judicial review have a democratic justification? This
paper concludes on the note that judicial review has a democratic justification although it is not a
necessary ingredient for a democratic government due to its virtues being controversial as seen in
the chapters of this paper. Consequently, judicial review isn't undemocratic just in light of the
fact that it empowers delegated judges to over-rule chose officials when individuals differ about
rights. Majority rule contentions for judicial review don't expect judges to be greater at ensuring
rights than administrators. Subsequently a popularity-based legitimization for legal audit doesn't
rely upon complex and unavoidably dubious translations and assessments of legal instead of
authoritative decisions. Majority rule government doesn't request exceptional ideals, skill or
shrewdness in its residents or their chiefs. From a majority rule viewpoint, accordingly, the case
for judicial review is that it empowers people to vindicate their privileges against government in
manners that equal those they generally use against one another. This makes legal survey
normatively alluring whether it prompts preferable choices over would be made by different
methods

8. REFRENCES

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Websites
1. Central Government Act, ‘Article 245 (1) in The Constitution of India 1949’ (2012)
<https://indiankanoon.org/doc/369702/ >
2. Kiranpreet Kaur, ‘India:Judicial Precedents In India’ (2020)
<https://www.mondaq.com/india/trials-appeals-compensation/882616/judicial-precedents-in-
india#:~:text=The%20doctrine%20of%20precedents%20makes,is%20that%20it%20provides
%20certainty>
3. Aggarwals Associates,’ Judicial Precedents in India’ (2019)
<https://aggarwalsandassociates.com/judicial-precedents-in-india/?
utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>
4. Simar, ‘Legislature versus Judiciary’ (2011)
<https://www.prsindia.org/theprsblog/legislature-versus-judiciary>
5. ScienceDirect, ‘Limited Government’ (2001)
< https://www.sciencedirect.com/topics/computer-science/limited-government>
6. Naomi Choi, ‘Rule of Law’ (2004) <https://www.britannica.com/topic/rule-of-law>
7. Bernard Schwartz, ‘About Bernard L. Schwartz’ < https://www.bernardlschwartz.com/>

Books
1. MP Singh, V.N. Shukla’s Constitution of India 999 (11th ed., Eastern Book Company 2008).
2. DR. J.N. Pandey, The Constitutional Law of India (49th ed., Central Law Agency 2012).
3. Sandeep Rana, Judicial Review: A Modern Concept of Judiciary
4. Durga Das Basu, Limited Government and judicial Review
5. Salman Kushal, Sidharth Luthra, Lokendra Malik, Shruti Bedi, Judicial Review Process,
Powers and Problems
6. Arun K. Thiruvengadam. 2017, The Constitution of India: A Contextual Analysis,

Cases

1. Marbury vs. Madison [1803] 5. U.S 137

2. Dr. Bonham vs. Cambridge University [1610] 8 Co Rep 114

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 3. Minersville School District v. Gobitis [1943] 127 A.LR. 1493
4. Thomas Bonham v College of Physicians [1610] 8 Co Rep 114 
5. United States v. Yale Todd [1749] 15 Wash. & Lee L. Rev. 220
6. Hylton v. United States [1796] 3 U.S 171
7. McCulloch v. Maryland [1891] 17 U.S 316
8. Youngstown Sheet Tube Co. v. Sawyer [1952] 343 U.S 579
9. Reed v. Town of Gilbert [2015] 576 U.S. 155
10. Emperor v. Burah, (1877) 3 ILR 63 (Cal).
11. Annie Besant v. Government of Madras, (1918) AIR 1210 (Mad).
12. Bhikaji Narain Dharkras v. State of M.P., (1955) 2 SCR 589
13. A.K. Gopalan v. State of Madras, (1950) SC 27
14. Golak Nath v. State of Punjab, AIR 1967 S.C. 1643
15. Sajjan Singh v. Rajasthan, (1965) 1 S.C.R. 933
16. Shankari Prasad v. Union of India, AIR 1951 S.C. 455
17. Keshavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461
18. Indira Nehru Gandhi v. Raj Narayan, AIR 1980 S.C. 1789
19. Shankari Prasad v. Union of India, AIR 1951 S.C. 455
20. Minerva Mills v. Union of India, A.I.R. 1975 S.C. 2299 (India).

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