Research consists in seeing what everyone else has seen, but thinking what no
one else has thought. In Marbury V. Madison
, the doctrine of
judicial review was established by Chief Justice Marshall. the Supreme Court
ruled that, because the Constitution clearly states that it is the supreme law
of the land and because it is the province of the judiciary to uphold the law,
the courts must declare state laws and even acts of Congress null and void when
they are inconsistent with a provision of the Constitution. In the U.S. system
of judicial review, constitutional questions can be raised only in connection
with actual "cases and controversies."
Advisory opinions to the government are common in other countries but are not
rendered by U.S. federal courts. If we compare this to India, it can be seen
that if there is any law which is inconsistent with the fundamental rights
provided in the Constitution of India, to the extent of inconsistency it shall
be considered as void. Judicial Review can be understood as a form of court
proceeding, usually in the Administrative Court where the lawfulness of a
decision or action is reviewed by the judge. Where there is no effective means
of challenge, judicial review is available.
The concern behind Judicial Review is that whether the law has been correctly
applied with and right procedures have been followed. The purpose for which
doctrine of judicial review has been evolved i.e., to keep the balance between
different branches of state machinery and to protect the rights of individuals
has been accomplished or not is needed to be studied. The evolution of doctrine
of judicial review has influenced the idea of checks and balances as an
essential element of democratic government. It has safeguarded the liberty and
rights of the individuals.
The Court, through power vested in it by way of interpretations may protect the
rights of the individual, which it has been doing for years now. Also, the
doctrine of judicial review should be used in administrative and legislative
proceedings for necessity. The researcher has undertaken this topic to study the
evolution of judicial review in U. S. A. The researcher will study such
evolution in comparison with judicial review in some other countries,
We must have read that the "power tends to corrupt and absolute power corrupts
absolutely". For avoiding this type of absolute corruption the concept of
Judicial review has been brought forth.
The US Constitution is the supreme law of the land. The Supreme Court has the
power to interpret it and preserve its supremacy by preventing its violations by
the Congress and the President. This provision has been the basis of the
judicial review power of the Supreme Court. "Judicial Review " is the principle
and authority which give the Supreme Court of USA the power to reject or
abrogate any law which is made by Congress or states.
According to this power Supreme Court of USA reject or abrogate any law which
does not suit or conform to the constitution of USA or apposite the constitution
of USA or violate the Constitution It has come to be recognized as the most
distinctive attribute and function of the Supreme Court. As such, it can be said
Judicial Review is the power of the Supreme Court to determine the
constitutional validity of federal and state laws whenever these are challenged
before it in the process of litigation. It is the power to reject such laws as
are held to be it ultra vires.
'Judicial Review' is the power of courts to pronounce upon the constitutionality
of legislative acts which fall within their normal jurisdiction to enforce and
the power to refuse enforce such as they find to be unconstitutional hence
Whenever the Legislature, Executive and Judiciary harms the constitutional
values and denies the rights, which have been definite under the Constitution.
The judiciary has an important role to play to protect the rights of people. It
is the duty of the judiciary to keep different organs of the state within the
limits of power conferred to them by the constitution. It is very important that
the laws passed by the state are checked, whether they uphold the spirit of
Constitutionalism or not.
All the branches of government shall be accountable and there shall also be a
check up on them so that the rights of individuals are protected. Judicial
Review is a crucial weapon to create checks and balances over the government's
powers, in order to avoid arbitrary, unjust and unconstitutional laws.
Concept Of Judicial Review
Judicial review, 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. The conventional usage of the term judicial review could
be more accurately described as "constitutional review," because there 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.
According to Redform, "Judicial review is the power of a court to enquire
whether a law, executive order or other official action conflicts with written
constitution and , if the court concludes that it does, declare it
unconstitutional and void". One can find the basis for judicial review in the
writings of Alexander Hamilton, one of the framers of the American constitution
in 1789, in the 'Federalist'.
He wrote, "The interpretation of the laws is the proper and peculiar province of
the courts. A constitution is in fact and must be regarded by the judges as a
fundamental law. It therefore belongs to them to ascertain its meaning and
meaning of an act passed by the legislature." He further said that if there was
any conflict between the two, that is the constitution and the law, the judges
should prefer the constitution as it is supreme. This became the basis of
Evolution Of Judicial Review In USA
The U.S. Constitution does not mention judicial review. This power, however, was
used before 1787 by courts in several of the American states to overturn laws
conflicting with state constitutions. In 1789 the Congress of the United States
passed the Judiciary Act, which gave federal courts the power of judicial review
over acts of state government. This power was used for the first time by the
U.S. Supreme Court in Hilton v. Virginia
In 1803, the power of judicial review was used for the first time by the U.S.
Supreme Court to declare an act of Congress unconstitutional. Acting under the
doctrine of Implied Powers, the Supreme Court in its judgement in Marbury v.
, admitted its existence and used it. In this case, Chief
Justice John Marshall explained and justified the exercise of judicial review to
strike down an unconstitutional act of Congress or states.
While doing so the Supreme Court referred to Article VI, Section 2 of the
Constitution which reads, "This Constitution and the laws of the United States
which shall be made in pursuance thereof; and all treaties made or which shall
be made under the authority of the United States, shall be the supreme law of
the land, and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding."
This article of the constitution was taken to mean that the judges have the
power and duty to uphold the supremacy of the Constitution by not allowing any
federal or state laws to violate its provisions. While giving judgment in this
case, which involved an interpretation of the Judiciary Act 1789, Chief Justice
Marshall enunciated this doctrine and observed that:
"A written Constitution is superior to all other acts of government made under
it; and it is the sworn duty of federal judges to follow the constitution and
give effect only to constitutional law and determine which law prevails where
there is conflict.
If a Congressional law conflicted with the Constitutional law, the court was
bound to uphold the Constitution as the highest law of land." "Courts are to
respect the Constitution and the Constitution is superior to any ordinary Act of
legislature." Since then the Supreme Court has been exercising this unique power
and has declared a number of legislative powers null and void.
After the historic judgement in the Marbury v. Madison
 case, the
Supreme Court has been regularly using this power. After 1803, it was used only
in 1857 in the Dred Scott case. Till today nearly 100 Congressional statutes
have been declared unconstitutional by the Supreme Court. The Court has always
refused to apply judicial review to political questions.
Judicial Review is neither automatic nor mechanical. The bills passed by the
Congress and the state legislatures become operative the moment these become
laws. These do not automatically go to the court for judicial review. It is only
when any law is specifically challenged or when during the course of litigation
in a case, the issue of the constitutionality of any law arises that the
conducts judicial review.
At the beginning of the twenty-first century the Dred Scott case is regarded
with universal disapprobation. Still, Taney's statement of the proper philosophy
of judicial review�that the Court should interpret the Constitution's provisions
as they were understood at the time of the Constitution's ratification�has merit
and is itself in accordance with the understanding of the framers. Taney's
elevation of property rights to the central constitutional concern is also in
keeping with the framers' views.
While the function of judicial review is not explicitly provided in the
Constitution, it had been anticipated before the adoption of that document.
Prior to 1789, state courts had already overturned legislative acts which
conflicted with state constitutions. Moreover, many of the Founding Fathers
expected the Supreme Court to assume this role in regard to the Constitution;
Alexander Hamilton and James Madison, for example, had underlined the importance
of judicial review in the Federalist Papers, which urged adoption of the
Judicial Review In U.S.A. Present Perspective
There is no mention of the Judicial Review in any part of the US Constitution.
The origin of judicial review in the USA is the result of a judicial decision
and its protraction has been possible due to some conventions. In a series of
important decisions, the Supreme Court under the leadership of Chief Justice
John Marshall not only established the principle of judicial review of federal
legislative action but also gave meaning to important structural Constitutional
provisions, such as the Commerce Clause, that defined the respective spheres of
competence of the states and the new federal government.
That it was not until the Marbury v. Madison case
, the act of the
congress extending to the court authority, which had not been granted by the
constitution, was declared invalid by the U.S. Supreme Court.
Five Democratic senators recently filed an amicus brief in New York State Rifle
and Pistol Association v. City of New York, for which the Supreme Court will
hear oral arguments in December. While the case, which concerns regulations on
licensed gun owners in New York City, has generated media attention as the
Court's next potential landmark Second Amendment ruling, the brief has drawn
coverage, too. "The Supreme Court is not well. And the people know it," the
Democratic senators warn. "Perhaps the Court can heal itself before the public
demands it be 'restructured in order to reduce the influence of politics.'"
If the public is going to maintain faith in the independence of the judiciary,
at least one of the justices that make up the current entrenched conservative
majority is sometimes going to have to vote against their policy preferences. If
not, there will continue to be threats to restructure the Court (e.g.
court-packing, getting rid of lifetime tenure) by a broader range of people.
These reforms would hasten the shift in public opinion toward viewing the Court
as nothing more than a political institution and would diminish its power,
prestige and influence in U.S. society. Roberts will find himself forced to
balance his desire for a conservative majority on the Court to move the law
incrementally but steadily rightward against his concern with preserving the
Court's legitimacy as an independent branch of government.
Judicial Review under Constitution of USA:
The United States is a federal state, with a national government and governments
in each of the fifty constituent states. At the national level power is divided
among three coequal branches: the executive branch headed by a president, who is
head of state and government; the bicameral legislative branch with houses of
basically coequal power; and the independent judiciary, which exercises judicial
Article III of the U.S. Constitution provides:
The judicial power of the United States which includes original, appellate
jurisdiction and also matters arising under law and equity jurisdiction
incorporates judicial power of Court.
Article VI of the Constitution USA provides:
All powers of government are exercisable only by the authority of the organ
established by the Constitution. Thus Article VI incorporates The Constitution
of the USA is the supreme law of the land.
While judicial review is not expressly provided in the Constitution of the USA,
it was formulated by the decisions of the Court. Provisions of the U.S.
Constitution which are mentioned above, indicates the jurisdiction of the
Supreme Court of USA and indicates that the Constitution of USA is the Supreme
law of the land. Thus it indirectly gives power of Judicial review to Supreme
Court of USA The Supreme Court of the U.S.A has the power to examine the acts of
Congress and State Legislatures from devolving the essential legislative
functions to the executive.
Judicial Review In India
The system of judicial review is also applicable in India. Although the term
Judicial Review has not been mentioned in the Constitution, the provisions of
various Articles of the Constitution of India have conferred the power of
judicial review on the Supreme Court. Accordingly the constitutional validity of
a legislative enactment or an executive order may be challenged in the Supreme
Court on the following grounds:
- Violation of fundamental rights.
- Outside the competence of the authority which has framed it.
- It is repugnant to the Constitutional provisions.
The Supreme Court considerably widened the scope of judicial review in India
through its judgment in Maneka Gandhi's case
. In this case, the
Supreme Court accepted the concept of natural justice as one essential component
of law thereby importing the American concept of 'due process of law' into our
In the case of Charanjit Lal v. The Union of India
, Justice Mukherjee
"The court should prima facie lean in favour of constitutionality and should
support the legislation if it is possible to do so on any reasonable ground." In
pursuance of this attitude the Supreme Court of India has enunciated the
doctrine of severability, which implies that only those portions of the law are
declared as void which are inconsistent with the provisions of the Constitution
and the rest of the law is permitted to operate. The Courts in India have
exercised power of judicial review with great restraint and attached more
importance to the express words of the Constitution rather than the spirit of
Judicial Review under the Constitution of India stands in a class by itself.
Under the Government of India Act of 1935, the absence of a formal Bill of
Rights in the constitutional document very effectively limited the scope of
Judicial Review power to an interpretation of the Act in the light of the
division of power between the centre and the units. Under the present
Constitution of India the horizon of judicial review was in the logic of events
and things, extended appreciably beyond a 'formal' interpretation of 'federal'
The debates of Constituent Assembly reveal, beyond any dispute, that the
judiciary was contemplated as an extension of the Rights and an 'arm of the
social revolution'. Judicial Review was accordingly, desired to be an essential
condition for the successful implementation and enforcement of the Fundamental
Rights. Members of Constituent Assembly were agreed upon one fundamental point
that Judicial Review under the new Constitution of the U.S.A., where the
doctrine was more an 'inferred' than a 'conferred' power and more implicit than
'expressed' through constitutional provisions.
In the Report of the Abhor Committee of Supreme Court, it was recommended that
"a Supreme Court with jurisdiction to decide upon the constitutional validity of
acts and laws can e regarded as a necessary implication of any federal scheme".
This was eventually extended to an interpretation of the laws and executive
orders on the touchstone of the Fundamental Rights.
In the Draft Constitution of India, this power of Judicial Review in relation to
fundamental rights found formal expression in Art. 8(2) and Art. 25(1) & (2)
which, when adopted by the nation's representatives in the Constituent Assembly
on November 26, 1949, became the new Arts. 13 (2) and 32 (1) & (2),
respectively, under the Constitution of India.
As a result of the Supreme Court judgment in the case of S.R.Bommai and
others v. The Union of India
, also known as Assembly dissolution case,
the scope of judicial review was further widened. In recent years the judiciary
has further widened his field of operation by declaring 'judicial review' as a
basic feature of the Constitution. Thus the Supreme Court in India has not
merely interpreted the language of the Constitution but also pronounced on
issues which involve matters of policy.
In Fundamental Rights case
, J. Khanna said that:
"judicial review has thus become an integral part of our Constitutional system
and a power has been vested in the High Courts and the Supreme Court to decide
about constitutional validity of the provisions of statutes are found to be
violative of any articles of the Constitution which is touchstone for the
validity of all laws the Supreme Court and High Courts are empowered to strike
down the said provision".
In, L. Chandra Kumar v. Union of India
, the Supreme Court held that
the bpower of judicial review of the legislative action as vested in the High
Court under Article 226 and in Supreme Court under Article 32 is part of the
basic structure of the Constitution and cannot be ousted or excluded even by the
No Judicial Review In Policy Matters
In policy matters, the judicial review is justified only if the policy is
arbitrary, unfair or violative of fundamental rights. The Courts must be loathed
to venture into an evaluation of State policy which must be given a reasonable
time to pan out. If policy proves to be unwise, oppressive or mindless, the
electorate has been quick to make the Government aware of its policy.
Judicial Review Comparison: India And USA
In the USA the Supreme Court has the power to declare any law unconstitutional
on the ground of its not following due process of law. The Parliament and State
legislature enjoys supremacy in their respective legislative fields and where
Courts have no authority to question the wisdom or policy of the law duly made
by the appropriate legislature and can reject a law only on the basis of it
The Supreme Court in India has several times refused to declare legislative
actions of parliament as invalid on the ground that unless it can be shown that
the natural, social or political rights of citizens are violated and such
injustice was expressly prohibited by the Constitution it refused to interfere
with legislative functioning.
In India, there are specific and extensive provisions of judicial review in the
Constitution of India such as Article 13, 32, 131-136, 143, 226, 227, 246, and
372. While the term judicial review is not expressly mentioned in any of these
Articles but they are implicit in these Articles. Whereas the Constitution of
the United States of America doesn't have any specific provision for judicial
review, Article III, 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 United States of America
is the formulation by court.
The doctrine of Separation of Powers which is a dominant feature of the American
Constitution had helped the Supreme Court a great deal in this connection. In
India the existence of a parliamentary government, this ensures the
responsibility of the executive to the legislature and minimizes the
possibilities of any conflict between the agencies of the government. However,
the position of the judiciary in India is more or less the same and is similar,
to a great extent, to that in the United States regarding constitutional
To conclude, it is because judicial review the court's power has strengthened in
the present scenario. The doctrine of Judicial Review of the United States of
America was the pioneer of Judicial Review in other Constitutions of the world,
which further evolved after the 18th century, while the Indian constitution was
also greatly inspired. In India the concept of judicial review was founded on
the principle of rule of law, the scope of judicial review is wider in India as
compared to the United States of America.
Because the Constitution of the United States of America is very concise in
nature and it is the most rigid Constitution in the world. Whereas the Indian
Constitution although being rigid, it is flexible as well in nature, The
exercise of the power of Judicial Review is normally an incidence of the type or
character of a government or a constitution.
In general, however, taking into account its actual operation through the years,
it may be observed that Judicial Review as a preserving instrument of
constitutionalism extends to three principal areas : first, it preserves the
constitutional balance of authority between the central and state government in
a federal system; second, it maintains and preserves the balance between
executive power and the legislative power on the same governmental level; and,
third, it defends the fundamental human freedoms and thus acts as the 'great
sentinel' of the cherished values of life and also has detailed provisions
making it the wealthiest Constitution in the world.
Thus the hypothesis is proved that, the evolution of doctrine of judicial review
has influenced the idea of checks and balances as an essential element of
democratic government. It has safeguarded the liberty and rights of the
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last seen on 26/03/2022.
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Parashar, available at, https://www.legalserviceindia.com/legal/article-7332-a-comparative-study-on-judicial-review-in-india-and-usa.html
last seen on 05/04/2022
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- Supra 5.
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last seen on, 06/04/2022.
- Arthur T. von Mehran ,Peter L. Murray, Law in the United States, p.134.
2nd Ed., 2017.
- Supra 3
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last seen on, 06/04/2022.
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- 1951 AIR 41.
- Supra 5.
- 1994 AIR 1918.
- Keshavanada Bharati V. State of Kerala, AIR 1973 SC 1461.
- AIR 1997 SC 1125.
- Also in Madras Bar Association V. Union of India, AIR 2015, SC 1571.
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