JUDICIAL REVIEW: UNITED STATES OF AMERICA ANDINDIA Introduction " We are under a Constitution, but the Constitution is what

the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution " - Charles Evans Hughes 1 As rightly said by Justice Charles Evans Hughes, indeed Constitution is what the judges interpret for the state and Judicial Review thus becomes an important tool in ademocracy to help the Judiciary to carry out its functions in accordance with theConstitution. Judicial review means the overseeing by the Judiciary of the exercise of power by other co-ordinate organs of the government with a view to ensuring thatthey remain confined to the limits drawn upon their powers by the Constitution.Though broadly defined as above, Judicial Review is a term which is used in differentmeanings in different countries. In some countries it is used as the power of the courtsto check the constitutionality of any enacted law and in some countries it only checksthe Administrative actions.Judicial review could be understood in terms of two different legal systems TheCivil Law System and the Common Law System OR by theories on democracy theLegislative Supremacy and the Separation of Powers theory. For instance in UnitedKingdom which is a common law country, Parliamentary Supremacy has beenestablished and thus Judicial Review of Legislative Acts is not permitted. On the other hand in the United States of America [the US], Constitutional Supremacy prevails.Similarly in India the Doctrine of Separation of Powers has been held as the BasicStructure of Constitution 2 and Constitutional Supremacy established, permits thereview of the Legislative Acts as well.To make a comparison between the US and India with respect to Judicial Review, 1 11 th Chief Justice of United States of America 2 Kesavananda Bharati v. Kerala AIR 1973 SC 1461

we shall have to understand how Judicial Review works in both these countries andwhat has been the background of establishment of such a concept. No doubt that the Doctrine of Judicial Review has been recognised as an outstandingAmerican contribution to the world culture. It filled in the gap that the Rule of Law inEngland had left open. Under the Rule of Law the executive action would have tocomply with the established standards of legality and propriety, but there is nothing of the effect for parliamentary legislation. Thus Judicial Review rightly fits itself intothis vacuum to review the legislative action as well. James Bradley Thayer haswarned that the exercise of the power of Judicial Review is always attended with aserious evil, namely, that of depriving people of the political experience and themoral education and stimulus that comes from fighting the question out in ordinaryway , and correcting their own errors and with the tendency to dwarf the politicalcapacity of the people and to deaden its sense of moral responsibility 3 yet India hasnot only incorporated the Doctrine in her Constitution , but has also lived with it allthese years since January 26 th ,1950,when the operation of the Constitutioncommenced.Thus I shall first elaborate on the concept of Judicial Review as in the US, and then goon to elaborate Judicial Review in India as it is from the US that India imbibed thisconcept. Judicial Review 1. Tracing the History of Judicial Review in USAThe Scholars trace the origins of Judicial Review to Dr Bonhams case 4 . Sir EdwardCoke, of England's Court of Common Pleas, stated that

when an act of parliament isagainst common right and reason or repugnant, or impossible to be performed, thecommon law will control it, and adjudge such act to be void . Coke believed that thecommon lawyer possessed artificial reason of the law and that this capacity elevatedhim to nearly equal footing with king and Parliament. According to Coke, special learning required to interpret the law placed it above politics. By the time JusticeCoke wrote his Institutes of the Law of England (Fourth Part) in 1644, he accepted inhis writings in the Institutes that Parliament possessed transcendent and abundant jurisdiction which could not be confinedwithin any bounds 5 In The Federalist Papers 6 , Alexander Hamiltonendorsed the idea of judicial reviewand provided one of its most compelling ideological foundations.Hamiltonwrote that whoever attentively considers the different departments of power must perceive that,in a government in which they are separated from each other, the judiciary, from thenature of its functions, will always be the least dangerous to the political rights of theConstitution. [T]he judiciary has no influence over either the sword or purse;no direction either of the strength or of the wealth of the society; and can take noactive resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment (no. 78). Thus, with such reassurances, Hamilton defended the practice of judicial review.Since the origins of constitutional government in America, Judicial Review hasfollowed Hamilton's thinking that judges have a special capacity and responsibility toexpoundthe meaning of the Constitution. By 1787, eight colonies of US hadincorporated Judicial Review in their Constitution. 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 theyare to guard. They would declare it void , insisted future Chief Justice JohnMarshall at the 1788 Virginia Ratifying Convention. Marshall supplied a practicalmeaning to these words in the classic case of Marbury v. Madison (1803) 7 , in whichhe securely rooted the modern doctrinal source of Judicial Review. In this case, theSupreme Court was confronted with an act of Congress that conflicted with a provision of the United States Constitution. The question, in Marshall's words, was whether an act, repugnant to the constitution, can become the law of the land. Heanswered that the Constitution is the fundamental and paramount law of the nation,and consequently, an act of the legislature repugnant to the constitution is void . Marshall argued, from the supremacy clause of Article 6, that no act of Congress thatviolates any part of the Constitution can be valid. Rather, he wrote, it must bedeclared unconstitutional and repealed. Marshall simultaneously limited andexpanded the Court's power; less power became more. The chief justice accepted theinherent limitation placed on the scope of judicial power, but he boldly asserted thatthe Court had a responsibility to say what the Constitution meant.Although some nineteenth century state court decisions claimed no more for judicialauthority than did Marbury , most later instances of judicial review asserted a broader scope of judicial power.President Thomas Jefferson, responding to Marshall's opinion in

Marbury , composedInstructions to a Federal Prosecutory in 1807, attempting to advance the prosecutionof Aaron Burr for treason. Jefferson argued against citing Marbury and proposed tohave [the decision] denied to be law. He went on to hold the three great branchesof the government should be coordinate, and independent of each other . Jefferson believed each branch of the government had the right to decide for itself theconstitutionality of matters before it and objected to a claim that the Court's judgmentwas superior to that of the other branches. His efforts on behalf of repeal of theJudiciary Act of 1801and the first judicialimpeachmentssupported the doctrine of co ordinate construction, whereby each branch of the federal government interpretsthe Constitution for itself.The Pennsylvania case of Eakin v. Raub (1825) 8 provided criticism of Marbury fromthe state's chief judge, John Gibson. His dissent in that case is viewed as the bestexposition 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 .Gibsonargued that [i]f the judiciary will inquire intoanything 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 hasbeen said to be coordinate (p. 330). Gibson's reading of the Constitution led him toobserve, [H]ad it been intended to interpose the judiciary as an additional barrier, the matter would surely not have been left in doubt (p. 331). To Gibson, the writtenConstitution was accessible to the public and it was the public's ability to hold thelegislature 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 centuryafter Marbury , despite the Court's activism with respect to state legislation. TheSupreme Court of the late nineteenth century realized the full potential of judicialreview over both federal and state legislation. Marshall had asserted it, but after 1824he was reduced to seeing its reach weaken in the face of political assault on its useagainst state legislation. While the Supreme Court did not write on a clean slate after the Civil War, neither did its innovative decisions expanding judicial review occupy acrowded field of precedent. Thus the Court's creation of the doctrines of substantive dueprocess and freedom of contractwere innovations far in advance of anythingadopted by the justices in the antebellum era.But even during this phase, the Court was not consistent with its substantive due process approach, for it sustained far more legislations than it truck down. Thus by1930s the Court had created two inconsistent lines of precedent , the one sustaining,and the other rejecting, the exercise of legislative power at the state and federal levels.Though the Court abandoned substantive due process in questions of economicregulation, the concept itself was not defunct, nor had the Court forsaken activism.Rather, it diverted its concern over legislative power from economic matters to problems of civil liberties and civil rights. Justice Harlan FiskeStoneenunciated thisnew direction obscurely, inFootnoteFour of United States v.

Carolene Products Co. (1938) 9 stating that the Court would now scrutinize three categories of issues: wherelegislation appears on its face to be within a specific prohibition of the Constitution,such as those of the first ten amendments; legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirablelegislation, and statutes directed at particular religious or national or racialminorities (p. 153). The Court lost no time in putting that agenda into effect. The desegregation decision, Brown v. Board of Education (1954) 10 , criminal procedure holdings like Mapp v. Ohio (1961) 11 ,and theabortiondecision in Roe v. Wade (1973) 12 epitomize the most recent period of judicialactivism. Brown was a bold restatement of the concept of equality, resulting from America's repudiation of racial discrimination. In Roe , the standard of equality applied to abortionaccommodated women's expanded roles in the marketplace. All of these decisionsmobilized the institutional authority of the Court and the authority of federal over state law to advance the political idea of equal treatment.While the court packing plan of the New Deal forced a major diversion in the Court'suse of Judicial Review, United States v. Nixon (1974) 13 affirmed the Supreme Court's power to stand against the other branches of the government. This decision, in whichthe Court ordered the President to turn over politically damaging materials, came atthe height of a dramatic confrontation between Congress and the presidency. The political context in which the decision was reached boosted the authority of the Courtin American political culture, because the Justices ordered the President to act againsthis own interests. The President obeyed. This decision was widely heralded as savingthe country from executive tyranny and was accepted as an assertion of the authorityof the Supreme Court as the final arbiter in constitutional matters.During the, more than 200 years of its existence, the Supreme Court has used its power of Judicial Review to overturn more than 150 acts of Congress and more than1,000 state laws. The great majority of these invalidations of federal and state actshave occurred during the 20th century. The

Supreme Court declared only 3 federalacts and 53 state laws unconstitutional from 1789 until 1868. Most of the lawsdeclared unconstitutional since 1925 have involved civil liberties guaranteed by theBill of Rights and subsequent amendments concerned with the rights of individuals.Thus, the Supreme Court has become the guardian of the people's liberties that JamesMadison said it would be at the inception of the republic.2. Tracing the history of Judicial Review in India In England there is no written Constitution and Parliament is supreme, there is noJudicial Review of the legislation enacted by the Parliament. India was a Britishcolony. Britain, however extended the practice of Judicial Review of legislation to itscolonies such as India, whose constituent acts enacted by British Parliament laiddown the limits of the legislative power vested in the colonial legislatures. Indiatherefore experienced Judicial Review of legislations as well as executive acts sincethe days of British rule. The courts in India followed the policy of maximum judicialrestraint. The judicial attitude in countries ruled by Britain was to interfere withlegislative acts only if they clearly transgressed the limits drawn upon their powers.Judicial attitude was influenced by the theory of Parliamentary supremacy and thecourts denied that they had anything to do with the policy or principles beyond whatwas clearly laid down by the words.The seeds of Judicial Review could have been said to be sown in the form of theGovernment of India Act of 1935 [the Act], which was, in a sense, a precursor of the Constitution. It was only until the Act was passed, that the demand of the Indiansthat their Constitution should contain a declaration of fundamental rights wasconceded.Much earlier, the British parliament had reconciled to a doctrine to a limited extent byenacting federal constitutions for the Dominions of Canada 14 and Australia 15 Theseconstitutions provided the models for The Government of India Act. The Act provided for three legislative lists. Two of these were based on Canadian pattern andenumerated the matters on which the federal government and the regionalgovernments, respectively, had the exclusive power to legislate. But like theAustralian Constitution, the Act also provided a concurrent list comprising mattersover which both governments could legislate; and as in Australia, in case of repugnancy between their laws on the same subject, the federal law was to prevail.The Constitution of India substantially adopted this scheme of distribution of powers between the Union and States, although there were important modifications aiming ata strong centre. There were two tiers of Government created through the Act- one at the State Leveland the other at the Centre. Having created a Diarchy at the Centre there was bound to be overlapping and disputes arising between the Centre and the State and thus a forumof Judiciary and Judicial Review was established. Thus, even before the Constitution,India was familiar with the operation of the American Doctrine in the limited field of judicial umpiring between the central and regional governments with the view toconfining each within the constraints of the written constitution.The second stage of development of Judicial Review in India could be attributed tothe direct and massive borrowings from the US Bill of Rights. The Indians saw in theBill of Rights an assurance to the minorities of their rights, and a safeguard againstarbitrary rule. Constitution of India of 1950 contained a Bill of Right in Part 3 under the caption Fundamental Rights and declared that any law that takes away or abridges any of the fundamental rights shall be void 16 .The rights were defined andrestrictions upon them were also defined with precision so as to leave the leastdiscretion with the courts. Unlike the Constitution of the United States which gaverights in unqualified terms and left it to courts to define their limit and legitimisedrestrictions on them, the Constitution of India enumerated the rights and restrictions.The makers of the Indian Constitution were apprehensive of the wider role assumedof the Supreme Court of the United States though interpretation of the Due Processclause of the Fifth Amendment to the Constitution of the United States. They purposely avoided the use of the words Due Process of Law so as not to allow thecourts to invalidate laws that might be disliked by the judges. The debates in theConstituent Assembly show that the makers of the constitution wanted limitedJudicial Review. Most of the admirers

of the Westminster model of democracywanted the courts in India to interpret the constitution so as to cause minimalinterference to the legislature. The courts were supposed to interpret the Constitutionnot in terms of what it should be but in terms of what it is. The courts need not beconcerned about what the effect of an interpretation will be but should state what lawis. If the law was to be changed, it was the function of the legislature. This was the black letter law tradition in which law is divorced from morality. The function of the court is conceived as that of the mere interpreter of the constitution with emphasis onthe letter rather than on the spirit of the constitution.A written constitution imposes limits on the powers of the legislatures. If it is afederal constitution, the limits are imposed by the distribution of power between thefederal government and the units and if the constitution contains the Bill of Rights,further limits are imposed on the legislature. Judicial Review under a writtenConstitution with a Bill of Rights cannot rermain merely technocratic because theexpressions used in the Bill of Rights such as Equality Before the Law, EqualProtection Law, Personal Liberty, The Procedure Established by Law or Freedom of Speech and Expression, are open textured and continue to acquire newmeanings as society evolves and social change occurs. A constitutional court therecannot remain a mere technocratic court forever. A court interpreting a bill of rights is bound to be activist in its interpretation and its decisions are bound to have politicalimplications.The Supreme Court of India started off as a technocratic court in the 1950s but slowlystarted acquiring more power through constitutional interpretations. Its transformationinto an activist court has been gradual and imperceptible. In fact the roots of judicialactivism are to be seen in the Courts earlier assertion regarding the nature of JudicialReview. In A.K. Gopalan v. Madras 17 although the Court concealed its role in anarrow manner, it asserted that its power of Judicial Review was inherent in the verynature of the written constitution. Article 13 of the Constitution said that the Stateshall make no law that takes away or abridges the Fundamental Rights and if any suchlaw is made or exists at the commencement of the Constitution, it shall be void.Referring to this article which provided Judicial Review in explicit terms the courtsaid; The inclusion of Article 13 (1) and (2) in the constitution appears to be a matter of abundant caution. Even in their absence, in any of the fundamental rights wasinfringed by any legislative enactment, the Court has always the power to declare theenactment, to the extent it transgresses the limits invalid The Indian Supreme Court acknowledged the Marshallian Doctrine of theConstitution being the higher or paramount or fundamental law of the land. As Chief Justice Kania observed 18 It is difficult upon any general principles, to limit the omnipotence of the sovereignlegislative power by judicial interposition, except so far as the express words of awritten Constitution give that authority[But] it is only in express constitutional provisions limiting legislative power and controlling the temporary will of themajority by a permanent and paramount law settled by the deliberate wisdom of thenation that one can find a safe and sold ground for the authority of Courts of Justiceto declare void any legislative enactment In 1967, in the Golaknaths case 19 , by a majority of six against five judges ,it was heldthat the parliament could not amend the constitution so as to take way or abridge thefundamental rights. This seemed preposterous that when it was conceived. Itchallenged the basic assumptions of judicial process and democracy. In Kesavananda Bharati v Kerala 20

, eleven out of thirteen judges held that Golaknath had beenwrongly decided. However while conceding that the constituent power under article368 extended to every article of the constitution, the majority of seven against six judges held that such power could not be exercised so as to destroy or tamper with the basic features or the basic structure of the Constitution. What is basic structure would be articulated by the Court from time to time through cases. This virtually meant thatthe Court would have the last say in respect of the Constitution. Judicial review washeld to be one of the basic features of the constitution in this case. This was arevolutionary decision and belied all theoretical assumptions till then.The intervention of the Emergency of 1975 and several constitutional amendmentsenacted during that period revealed the importance of the counter-majoritarian natureof Judicial Review. When the Kesavanada decision was given, the basic structuredoctrine appeared to be unsustainable because of its elitist and anti-majoritarianstance. But during the emergency, the amendments sought to do away with the checksand balances implicit in the Constitution, the basic structure doctrine became therallying point for those who wanted to preserve the Constitution. in those articles, shall be voidThe Constitution of the US does not elaborate on such provisions and thus the IndianConstitution is clearer and thus on better footing as far as providing for the power of Judicial Review, in the form of various provisions as mentioned A Comparative Perspective Provisions in the Constitution conferring the power of Judicial ReviewThough so far as India is concerned, the advocates of Judicial Review need not suffer from the disadvantage caused by the fact that the Constitution of the US had noexpress provisions conferring the power of Judicial Review upon the courts. In India-1.There are numerous provisions in the Constitution saying that the acts of theLegislature or any other organ are subject to the provisions of theConstitution, e.g. Arts. 245,309,327,328, which unmistakably establish thatthe Constitution provides the higher law, which limits the power of the organsof the States, set up by the Constitution.Ofcourse, there are, on the contrary, certain provisions which give overriding power to the Legislature notwithstanding anything in this Constitution, for e.g. the power to amend the Constitution itself, under Art 368(1). Converselythere are provisions which curtail the powers of the Legislature, e.g. Arts.370(1)(b), 371(1)(a).Taken together, these very exceptions establish the primacy of theConstitution as a higher law above the Legislature, in matters which itexpressly provides or prohibits. If therefore, ever arises any conflict betweenthe Legislature and the relevant provisions of the Constitution, it should be theduty of the Judiciary to enforce the provision of the Constitution against theoffending law made by the Legislature concerned.2.Though this duty of Judiciary is not provided for with respect to each of the provisions of the Constitution, there are indeed some provisions, such as Art.13(2) or 254(1), which expressly lay down that a law which contravenes themandates of the Constitution as mentioned above.Judicial Review and Right to Property

Although the Constituent Assembly unanimously agreed to incorporate thefundamental rights to the constitution and expressly provided that a law inconsistentwith any of those fundamental rights would be void, maximum care was taken toavoid making Judicial Review censorial of legislative policy as it had been in the US.This was so because fear of large scale invalidation of laws seems to have been shared by the makers of Indian constitution. The US Supreme Court had given manyreactionary decisions. It had held a law abolishing slavery unconstitutional on theground that it violated the slave owner right to property. This meant that the Courtregarded a slave as the property of his owner 21

.A legislation against child labour wasstruck down as being against the doctrine of freedom of contract. 22 The Court alsoinvalidated several laws enacted under President Roosevelts New Deal program.The memories of such judicial decisions were under fresh in the minds of the makersof the Indian Constitution. India had to bring about a massive program of land reformand change in property relation during which this issue came into prominence. Themembers of the Constituent Assembly were apprehensive of the negative judicialattitude that might prevent legitimate socio economic reforms. It was during thesedebates that the Constitution makers spelt out what model of judicial review theywanted for India. They obviously did not want the American model under which theCourt could examine whether the law was just and fair and what was liberty andequality but wanted the British model of Judicial Review, which ascertained whether the Legislature acted within its limits and vigilantly scrutinized the acts of theExecutive to make sure they were according to the Law.Due Process of Law versus Procedure Established by LawThe due process clause found in the fifth and fourteen amendment of the Constitutionof the United States was purposely avoided and another phrase, ProcedureEstablished by Law was preferred by the Constitution makers in the article 21, which guarantees that no one shall be deprived of his life and personal liberty. The due process clause was avoided on the advice of several persons including JusticeFrankfurter of the US Supreme Court. Sir B N Rau, the Constitutional Advisor to theConstituent Assembly in his report to President of the Assembly said; Indeed, Justice Frankfurter considered that the power of judicial review implied inthe due process clause, of which there is a qualified version in clause 16 of our draft Constitution was not only undemocratic (because it gave a few judges a power of vetoing legislations enacted by the representatives of the nation) but also threw anunfair burden at the judiciary; and Justice Lerned Hand considered that it will bebetter to have all fundamental rights as moral presets than as legal fetters in theconstitution 23 . Dr. Ambedkar had also expressed this dilemma of all constitutional lawyers - Is itdesirable to leave the question of liberty to the majority in the parliament which isoften motivated by partisan political considerations? Is it desirable to leave it to a few judges? Although Dr.Ambedkars speech reflects the dilemma of the makers of theconstitution regarding the scope of Judicial Review, the opinion seems to have beenequally divided between those who prefer supremacy in parliament and those whowanted parliaments laws to be subject to Judicial Review. The very fact that theConstituent Assembly incorporated the declaration of Fundamental Rights in Part IIIand gave to Supreme Court the special responsibility to protect those rights was aclear evidence of the constitutions preference for Judicial Review with reference tofundamental principles of freedom, equality and justice. While Nehru opted for arestricted scope of Judicial Review, Ambedkar was not free from doubts about thewisdom of giving to parliament the freedom to lay down any procedure and any lawrestricting liberty. This was so because Nehru was brought up on the British notionsof Rule of Law and therefore felt secure with a sovereign Parliament whereasAmbedkar who had fought not only against colonial rule but also against the tyrannyof the majority felt that there was a need to protect individual liberty and minorityrights from the majoritarian rule that may set in after the disappearance of the colonialregime Thus the words procedure established by law instead of due process of law cameinto being in the landmark judgement of Maneka Gandhi v Union of India . 24 Legitimacy of Judicial Review The legitimacy of the Court and Judicial Review is derived from the faith that peoplerepose in the Judiciary and thus Courts have to continuously strive to maintain their legitimacy. Also

one has to understand that Judges after all are human beings and toerr is only human. An activist Judge has to be prepared to take criticism of his judgements. This is done by jurists and lawyers and, at a more mass level by mediaetc. This is an important tool to keep a check on the fact that the trust that the framersof the Constitution have put in the Judiciary of the country, is respected and ismaintained with responsibility. While answering a question about corruption andaccountability and refuting the charges that judiciary does not represent the will of the people, Justice Y.K Sabharwal said in an interview 25 When the Supreme Court declares that executive and the legislature has exceeded its limits and crossed province the judgement is a decision on behalf of We the people of India, to whom the legislature and the executive are accountable As also Thomas Jefferson, agreed that the Legislators are elected and represent thewill of the people, but he believed that, that is not the end of it. He gave the reasoning behind it, in his notes, way back in 1781. He said that even in a government whichreflects the spirit of people, the spirit is not permanent, as in due course of time our rulers will become corrupt and the people will become careless .Thus both in India and the US the legitimacy of the Judicial Review can be said to bederived form the faith that the people repose in the Judiciary. As, an elected body isonly one source of legitimacy and the not the only one. Conclusion After reading the essay it can be easily inferred that the US had laid the foundationsfor the power of Judicial Review and India followed it. The US invented the power of Judicial Review and India imbibed it. It is also very clear that India did not just lift theconcept from the US and put it into its Constitution. The power of Judicial Review asa concept was deliberated over by the framers of our Constitution, also it took somelandmark judgements to give clarity to what the framers had intended while providingfor the same in the Constitution of India.