Abstract
Judicial review is the power of courts to examine legislative actions and determine whether the laws made by the legislature are consistent with the Constitution. It is a key feature of constitutional supremacy and plays an important role in maintaining the rule of law. Through judicial review, courts act as guardians of the Constitution by ensuring that legislative bodies do not exceed their constitutional limits and that individual rights are not violated by unconstitutional laws.
India and Canada, both constitutional democracies with a common law background, have developed different but comparable systems for reviewing legislative actions. In India, the Constitution expressly empowers the judiciary to strike down laws that violate fundamental rights or other constitutional provisions. This has resulted in a strong system of constitutional supremacy, where courts actively review legislative measures and have evolved important doctrines to control misuse of legislative power.
In Canada, judicial review gained greater strength after the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms. Canadian courts can invalidate legislation that is inconsistent with constitutional rights, while parliamentary sovereignty is partly preserved through the notwithstanding clause, which allows legislatures to temporarily override certain rights.
This study focuses on the judicial review of legislative actions in both countries by examining constitutional provisions, judicial doctrines, and the practical role of courts in reviewing laws. It analyzes important judicial decisions and explores the challenges involved in balancing the protection of constitutional rights with democratic values, legislative authority, and the legitimacy of judicial intervention.
Introduction
Judicial review represents one of the most significant developments in modern constitutional law, enabling courts to enforce constitutional supremacy over legislative enactments. In democratic societies, it functions as both a shield protecting individual liberties and a sword striking down unconstitutional exercises of power. India and Canada transitioned from British parliamentary supremacy to constitutional supremacy, yet their trajectories differ substantially.
India adopted explicit judicial review mechanisms in its 1950 Constitution, viewing them as essential safeguards for fundamental rights. Canada traditionally venerated parliamentary sovereignty until the 1982 constitutional transformation introduced comprehensive rights-based review. These parallel yet divergent evolutions offer rich comparative insights into how constitutional cultures mediate tensions between judicial power and democratic governance.
Meaning And Definition
Definition Of Judicial Review
- Judicial review is the power of courts to examine legislative enactments and governmental actions for conformity with constitutional principles and invalidate those found inconsistent. Justice John Marshall described it as “the very essence of judicial duty” to interpret the Constitution and enforce its supremacy over ordinary legislation. This definition emphasizes the judiciary’s role as the guardian of constitutional limits.
- Professor A.V. Dicey’s rule of law conception—that government operates only through settled law applied by ordinary courts— provides the normative foundation. Modern constitutionalism transforms this principle by elevating constitutional law above ordinary legislation, making legislative actions subject to judicial scrutiny for procedural and substantive validity.
Key Features
- Constitutional supremacy
- Written constitution
- Independent judiciary
- Enforceable fundamental rights
- Separation of powers
- Judicial independence
- Remedial jurisdiction
- Limitations on legislative authority
Judicial Review In Practice
| Country | Judicial Review Characteristics |
|---|---|
| India | Robust judicial review with explicit constitutional authorization. Articles 13, 32, 226, and 136 empower courts to invalidate laws violating fundamental rights or constitutional provisions. The Supreme Court’s basic structure doctrine limits even constitutional amendment powers, generating tensions over judicial overreach. Financially independent judiciary, but faces challenges of case backlogs and implementation gaps. |
| Canada | Rights-based review introduced by the 1982 Charter while preserving legislative sovereignty through section 33’s notwithstanding clause. The Supreme Court employs dialogue theory, viewing review as part of ongoing constitutional conversation rather than final word. Provinces have constitutional authority to invoke notwithstanding clause, creating unique balance between rights protection and democratic choice. Cooperative approach with greater legislative deference in policy matters. |
Hypothesis
Both countries follow constitutional judicial review, but their approach differs. In India, the basic structure doctrine gives strong power to the judiciary, allowing courts to strike down even constitutional amendments that damage core constitutional principles. In Canada, the notwithstanding clause allows Parliament to override certain court decisions on rights, which keeps legislative authority important and promotes institutional balance between courts and the legislature.
Research Gap
Although judicial review in India and Canada has been extensively studied, significant gaps remain. Most research focuses on theoretical justifications and landmark judgments rather than practical operation in real legislative decision-making. Limited analysis exists on how courts actually apply review standards across different policy domains or how legislatures respond judicially to invalidations.
Comparative studies often describe formal differences without examining how historical, social, and economic conditions shape judicial review’s functioning. The impact of India’s basic structure doctrine on legislative innovation and Canada’s notwithstanding clause on rights protection remain understudied from practical governance perspectives. Additionally, insufficient research addresses emerging challenges like digital privacy, climate change legislation, and national security measures in both frameworks.
Research Questions
- What constitutional provisions and doctrinal frameworks govern judicial review of legislative actions in India and Canada?
- How do India’s basic structure doctrine and Canada’s dialogue theory differently balance constitutional supremacy with legislative authority?
- What standards do courts employ when reviewing legislation affecting fundamental rights, and how do these vary between jurisdictions?
- How do remedial jurisdictions (Article 32 vs Charter section 24) differ in protecting rights?
- What challenges arise from judicial activism allegations and democratic legitimacy concerns in each system?
- How effective are these frameworks in protecting rights while maintaining appropriate legislative autonomy?
Scope Of The Study
This study examines judicial review of legislative actions in India and Canada, focusing on constitutional provisions, doctrinal frameworks, and landmark jurisprudence. It analyzes Supreme Court decisions establishing major principles and reviewing significant legislative actions affecting rights and governance.
Limited to doctrinal and comparative analysis without empirical field research, it emphasizes practical challenges and inter-jurisdictional learning opportunities. Temporal scope covers constitutional founding to present, with focus on post-2000 developments.
Significance Of The Study
This research illuminates how different constitutional frameworks mediate the tension between judicial power and democratic governance.
It provides actionable insights for policymakers, judges, and scholars grappling with:
- Counter-majoritarian difficulties
- Rights protection
- Federalism
By comparing India’s explicit review model with Canada’s dialogue approach, the study offers reform ideas for both systems and lessons for emerging democracies designing judicial review mechanisms.
It contributes to ongoing debates about:
- Judicial overreach
- Legislative compliance
- Effective rights protection in diverse societies
Critical Analysis
India’s judicial review framework is constitutionally explicit and expansive, with the Supreme Court acting as powerful rights protector through public interest litigation and basic structure doctrine. This ensures strong rights protection but raises democratic legitimacy concerns and charges of judicial legislation. Financial dependence and appointment controversies occasionally threaten institutional independence.
Canada’s post-1982 framework emphasizes constitutional dialogue, where judicial review initiates legislative reconsideration rather than final determination. The notwithstanding clause preserves parliamentary sovereignty but remains politically toxic and rarely used. This cooperative model shows greater legislative deference but may weaken rights protection in controversial areas.
In short India prioritizes judicial enforcement of constitutional limits, while Canada emphasizes inter-branch dialogue; both face challenges in balancing rights protection with democratic governance and institutional legitimacy.
Comparative Overview
| Aspect | India | Canada |
|---|---|---|
| Judicial Review Model | Explicit and expansive constitutional review | Dialogue-based constitutional review |
| Key Doctrine | Basic Structure Doctrine | Dialogue Theory |
| Rights Protection | Strong judicial enforcement | Balanced with legislative reconsideration |
| Legislative Authority | Limited by constitutional basic structure | Preserved through the notwithstanding clause |
| Institutional Challenge | Concerns about judicial activism and appointment controversies | Potential weakening of rights protection in controversial areas |
Conclusion
Judicial review in India and Canada reflects different approaches to reconciling constitutional supremacy with democratic legitimacy. India’s quasi-federal system with explicit judicial review powers ensures robust rights protection but faces challenges of democratic legitimacy and potential overreach. Canada’s cooperative federal model with constitutional dialogue and the notwithstanding clause preserves legislative sovereignty while protecting rights through inter-branch negotiation.
Both systems demonstrate that effective judicial review requires not just constitutional text but also institutional legitimacy, political culture, and mutual respect among branches. Federalism in both jurisdictions ensures democratic governance, but effective cooperation and clear mechanisms are essential for balancing judicial review with legislative authority and protecting fundamental rights in evolving societies.
Reference Cases
| Sl. No. | Case Name | Year | Key Principle |
|---|---|---|---|
| 1 | Kesavananda Bharati v. State of Kerala | 1973 | Indian basic structure doctrine |
| 2 | S.R. Bommai v. Union of India | 1994 | Judicial review of emergency powers |
| 3 | Maneka Gandhi v. Union of India | 1978 | Expansive rights interpretation |
