Mains Practice Questions

Introduction

Judicial review is the power of the judiciary to review the constitutionality of legislative and executive actions. While both India and the United States uphold judicial review as a cornerstone of constitutional democracy, their approaches differ significantly in terms of scope, practice, and constitutional basis.

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Principles and Practices of Judicial Review in India

• Constitutional Basis: Judicial review is provided in the Indian Constitution under Articles 13, 32, 131–136, 143, 226, and 227.
• Procedure Established by Law: The Indian judiciary follows "procedure established by law", allowing review only on substantive grounds (e.g., competence of legislature, violation of fundamental rights), not on the reasonableness or wisdom of law.
• Basic Structure Doctrine: In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Parliament cannot alter the ‘basic structure’ of the Constitution, thereby expanding the scope of judicial review over constitutional amendments.
• Checks on Judicial Activism: While Indian courts have exercised activist roles in cases like Olga Tellis and Vishakha, the judiciary does not act as a super legislature. It refrains from making laws and focuses on interpretation and enforcement.

Principles and Practices of Judicial Review in the USA:

• Origin and Basis: Though not explicitly provided in the U.S. Constitution, judicial review was firmly established in Marbury v. Madison (1803) by Chief Justice John Marshall.
• Due Process of Law: The U.S. The Constitution, through the 5th and 14th Amendments, provides for "due process of law", allowing courts to examine both substantive and procedural fairness of laws.
• Judicial Supremacy: The U.S. Supreme Court acts as a ‘super legislature’ in practice. It can strike down federal and state laws, and even create precedents with the force of law (judge-made law).
• Strong Judicial Review: Judicial review in the U.S. is often strong and activist, protecting socio-economic and minority rights. Cases like Miranda v. Arizona and United States v. Nixon exemplify this practice.

Differences in Constitutional Approach: India vs. USA

Conclusion

While both India and the U.S. recognize judicial review as an essential feature of constitutional governance, their philosophies and practices differ significantly. The U.S. follows a model of judicial supremacy with strong review, whereas India adopts a balanced approach grounded in constitutional limitations.