Comparative study of Indian Judicial Review System with the U.S.A. and U.K.


Dr. Priya Rao1, Abhay Kumar Tiwari2

1Assistant Professor, SOS in Law, Pt. Ravishankar Shukla University Raipur (C.G.)

2Research Scholar, SOS in Law, Pt. Ravishankar Shukla University Raipur (C.G.)

*Corresponding Author Email:



This paper deals with system of judicial review adopted by the various democratic nations. This paper also discuss the various provision of the Constitution of the India which empowers the court for the judicial review. Authors also describe the various landmark judgment and the constitutional amendment done with the help of the judicial review. In present situation the judiciary have the responsibility to uphold the constitutional values and to enforce the Constitutional limitation for the proper functioning of the all the organ of the government.


KEYWORDS: Judicial Review, Constitutional amendment, Federalism, Human rights, Supreme Court, Parliament, legislation.




Indian constitution is the blend of American and British Constitutions.Indian Parliament is not a sovereign law making body like its Englishcounterpart. It is owing to this reason that our constitutional system “wonderfully adopt the via media between the American system of judicialsupremacy and the English principles of parliamentary supremacy”. Judicial Review is one of the cardinal features of Indian constitutionalsystem. India has constitutional and limited democracy which imposeslimitations on the power of the government and banks on majority rule to avoidtyranny and arbitrariness. The Preamble of the Indian Constitution haspromised equality and justice to all citizens of India and have the laws of Indiaare liable to be tested judicially. The majority rules though the best rule, isfound generally to be addicted to tyranny. This is why the existence of someimpartial body is essential for the maintenance of democracy.


The two principal basis of judicial review are “Theoryof Limited Government” and “Supremacy of constitution with the requirement that ordinarylaw must confirm to the Constitutional law.” Judicial Review is a mechanism and therefore theConcept of Judicial Activism is a part of this mechanism. So far as the, Indian constitution hascreated an independent judiciary which is vested with the power of judicial review to determinethe legality of any validity of law and any executive action. Supreme Court of India formulatedvarious doctrines on the basis of Judicial Review like “Doctrine of Severability, Doctrine ofEclipse, Doctrine of Prospective Overruling” etc. In India Judicial Review based on threeimportant dimensions, these are” Judicial Review of Constitutional Amendments”, JudicialReview of Legislative Actions, “Judicial Review of Administrative Actions”. It is the duty of the judiciary to keep different organs of the state within thelimits power conferred upon them by the constitution. The legitimacy of judicial review isbased in the Rule of Law, and the need for public bodies to act according to law. Judicial reviewis a means to hold those who exercise public power accountable for the manner of its exercise, especially when decisions lie outside the effective control of the political process. JudicialReview is a great weapon through which arbitrary, unjust harassing and unconstitutional lawsare checked.


The Constitution makers of India very wisely incorporated in theConstitution itself, the provisions of Judicial Review so as to maintain thebalance of federalism, to protect the fundamental rights guaranteed to thecitizens and to afford a useful weapon for equality, liberty and freedom. Soobserved Patanjali Sastri, J., in State of Madras v. V.G. Rao, Justice Khanna, former judges of the Supreme Court of India has in his book “Judicial Reviewor confrontation” made the following remarks in this connection “JudicialReview has constitutional system and a power has been vested in the HighCourt and the Supreme Court to decide about the constitutional validity of theprovision of the statutes”. The Constitution of India explicitly establishes the doctrine of JudicialReview in several Articles, such as 13, 32, 131, 136, 143, 226 and 246.Art. 13(2) says that “the State shall not make any lawwhich takes away or abridges the right conferred by thispart and any law made in contraventions of this clauseshall, to the extent of the contravention, be void”.


Under U.S. Constitution:

The concept of Judicial Review is basically originated in USA in the historic landmark case Marbury vs. Madison1But originally Lord Coke decision in, Dr. Bonham vs. Cambridge University had rooted the scope of judicial review first time in 1610 in England. The USConstitution doesn’t provide power of judicial review expressly but Article III of the U.S. Constitution as "the judicial power of the United States which includes original, appellatejurisdiction and also matter arising under law and equity jurisdiction incorporates judicialpower of Court. Art. VI of the Constitution provides” All powers of government are exercisable only by on the authority of the organ established by the Constitution. Thus, Art VI incorporates “Constitution of USA is the supreme law of the land”. Judicial review is not expressly providedin the US Constitution, but it is the formulation by the Court. Supreme Court of US has powerto check the action of Congress and State Legislatures from delegating the essential legislativefunction to the executive. The principle “due process of law” creates a democratic balance inUS by declaring the arbitrary and illegal laws.


Objects of Judicial Review in USA:

The main objectives of Judicial Review in USA are as follows:

1.       To declare the laws unconstitutional if they are contrary to the Constitution.

2.       To defend the valid laws which are challenged to be unconstitutional.

3.       To protect and uphold the Supremacy of the Constitution by interpreting its provision.

4.       To save the legislative function of Congress being encroached by other departments ofthe Government.

Under UK Constitution:

In UK, there is no written constitution. Earlier, there was no scope of judicial revie in UK. The principle of “Parliamentary Sovereignty” dominated to Constitutional democracy inUnited Kingdom. There is Parliament Supremacy UK which incorporates the will of the peopleand Courts cannot scrutinize the actions of Parliament. In UK, Parliament prevents the scopeof Judicial Review to Primary legislation (legislation enacted by Parliament) except in fewcases related to Human Rights and individual freedom, therefore Primary legislation is outsidethe purview of judicial review. But, as regards to Secondary legislation (rules, regulation, actof Ministries) are subject to Judicial Review. Court can review the actions of administrativeand executive actions in UK. Judicial Review in UK is basically on procedural grounds whichis largely related to administrative actions.


Judicial Review in India:

“Supremacy of the law is the spirit of the Indian Constitution. In India, the “DOCTRINE OFJUDICIAL REVIEW “is the basic feature of the Constitution. It is the concept of Rule ofLaw and it is the touchstone of Constitution India. The most prominent object of judicial review to ensure that the authority does not abuse itspower and the individual receives just and fair treatment. The ostensible purpose of judicialreview is to vindicate some alleged right of one parties to litigation and thus grant relief to theaggrieved party by declaring an enactment void, if in law it is void, in the judgment of thecourt. But the real purpose is something higher i.e., no statute which is repugnant to theconstitution should be enforced by courts of law.


Important Doctrines Formulated by Courts through Judicial Interpretations: Art. 13 of constitution incorporates “Judicial Review of Post constitution and Pre-constitutionallaws”. This Article inherited most important doctrines of judicial review likeDoctrine of Severability, Doctrine of Eclipse. Article 13 provides for the “judicial review” ofall the legislations in India, past as well as future. This power has been conferred on the HighCourts and the Supreme Court of India under Art. 226 and 32 which can be declare a lawunconstitutional if it is inconsistent with any of the provisions of PART 3 of the Constitution.Some other doctrines are formulated by courts using the power of judicial review are Doctrineof Pith and Substance, Doctrine of Colorable legislation. These doctrines are originated bySupreme Court by using power of judicial review through interpreting various Articles.


Doctrine of Severablity:

Art. 13 of the Indian constitution incorporates this doctrine. In, Art. 13 the word” to the extent of contravention” are the basis of Doctrine of Severability. This doctrine enumerates that thecourt can separate the offending part unconstitutional of the impugned legislation from the restof its legislation. Other parts of the legislation shall remain operative, if that is possible. Thisdoctrine has been considerations of equity and prudence. It the valid and invalid parts are soinextricably mixed up that they cannot be separated the entire provision is to be void. This isknown as “doctrine of severability” In A.K Gopalan vs. State of Madras2, case section 14 of Prevention Detention Act wasfound out to be in violation of Article 14 of the constitution. It was held by the Supreme Courtthat it is Section 14 of the Act which is to be struck down not the act as a whole. It was alsoheld that the omission of Section 14 of the Act will not change the object of the Act and henceit is severable. Supreme court by applying doctrine of severability invalidate the impugned law.


Doctrine of Eclipse:

This doctrine applies to a case of a pre constitution statute. Under Art. 13(1) of the constitution, all pre constitution statutes which are inconsistent to part 3 of the constitutionbecome unenforceable and unconstitutional after the enactment of the constitution. Thus, whensuch statutes were enacted they were fully valid and operative. They become eclipsed onaccount of Art. 13 and lost their validity. This is called “Doctrine of Eclipse”. If theconstitutional ban is removed, the statute becomes free from eclipse, and becomes enforceableagain.


In Bhikaji Narain Dharkras vs. State of M.P.3 an existing State law authorized the State Govtto exclude all the private motor transport operators from the field of transport business. Afterthis parts of this law became void on the commencement of the constitution as it infringed theprovisions of Art. 19(1)(g) and could not be justified under the provisions of Art.19(6) of theconstitution. First Amendment Act, 1951 amended the Art. 19(6) and due to this Amendment permitted the Government to monopolize any business. The Supreme Court held that after theAmendment of clause (6) of Art. 19, the constitutional impediment was removed and theimpugned Act ceased to be unconstitutional and became operative and enforceable.


Doctrine of Prospective Overrulling:

The basic meaning of prospective overruling is to construe an earlier decision in a way so asto suit the present day needs, but in such a way that it does not create a binding effect upon theparties to the original case or other parties bound by the precedent. The use of this doctrineoverrules an earlier laid down precedent with effect limited to future cases and all the eventsthat occurred before it are bound by the old precedent itself. In simpler terms it means that thecourt is laying down a new law for the future. . This doctrine was propounded in India in thecase of Golak Nath vs. State of Punjab4 In this case the court overruled the decisions laid down in Sajjan Singh 83 and ShankariPrasad.s84 cases and propounded Doctrine of Prospective Overruling. The Judges of SupremeCourt of India laid down its view on this doctrine in a very substantive way, by saying "Thedoctrine of prospective overruling is a modern doctrine suitable for a fast moving society.” TheSupreme Court applied the doctrine of prospective overruling and held that this decision willhave only prospective operation and therefore, the first, fourth and nineteenth Amendmentwill continue to be valid. Our Indian Constitution, Judicial Review is explicitly provided in three dimensions such as“Judicial Review of Constitutional Amendments“, Judicial Review of Parliament and StateLegislation and also Judicial Review of Administrative actions of Executives.


Judicial Review of Constitutional Amendments:

In India, constitutional amendments are very rigid in nature. Although supreme court of indiais the guardian of Indian Constitution, therefore supreme court time to time scrutinize thevalidity of constitutional amendment laws, parliament has the supreme power to amend theconstitution but cannot abrogate the basic structure of the constitution. But, there was a conflictbetween Court and Parliament regarding Constitutional Amendment that whether fundamentalrights are amendable under Art. 368 or not?The question whether fundamental rights can be amended under Art. 368 came forconsideration of the Supreme Court in Shankari Prasad v. Union of India5 the first case onamendability of the constitution the validity of the constitution (1st Amendment) Act, 1951, curtailing the “Right to Property” guaranteed by Art. 31 was challenge .The argument againstthe validity of (1st Amendment) was that Art. 13 prohibits enactment of a law infringing anabrogating the fundamental rights, that the word ‘law’ in Art 13 would include” any law”, thena law amending the constitution and therefore, the validity of such a law could be judged andscrutinized with reference to the fundamental rights which it could not infringe. It was arguedthat the “State in Article 12 included Parliament and the word “law” in Art. 13(2), therefore, must include constitutional amendment””. The Supreme Court, however, rejected the aboveargument and held that the power to amend the constitution including the fundamental rightsis contained in Art. 368, and that the word ‘law’ in Art. 13(2) includes only an ordinary lawmade in exercise of the legislative powers and does not include constitutional amendmentwhich is made in exercise of constituent power. Therefore, a constitutional amendment will bevalid even if it abridges or takes any of the fundamental rights. Again , In 1964 Sajjan Singh v. Rajasthan6the same question was raised when the validityof the Constitution (Seventeenth Amendment)Act, 1964, was called in question and once againthe court revised its earlier view that constitutional amendments, made under Art. 368 areoutside the purview of Judicial Review of the Courts. In this case the Constitution (17thAmendment) Act, 1964 was challenged an upheld. After two years, after the decision of Sajjan singh , in 1967 in Golak Nath vs. State of Punjabthe same question regarding constitutional amendment was raised. In this case the inclusion ofthe Punjab Security of Land Tenures Act,1953 in the Ninth schedule was challenged on theground that the Seventeenth Amendment by which it was so included as well as the First andthe Fourth Amendments abridged the fundamental rights were unconstitutional. The SupremeCourt overruled the decision of Shankari Prasad and Sajjan singh’s case. The Supreme Courtobserved that “An amendment is a ‘law’ within the meaning of Art. 13(2) included every kindof law, “statutory as well as constitutional law” and hence a constitutional amendment whichcontravened Art. 13(2) will be declared void.” Court further observed that “The power ofParliament to amend the constitution is derived from Art.245, read with Entry 97 of list 1 ofthe Constitution and not from Art.368. Art. 368 only lays down the procedure for amendmentof Constitution. Amendment is a legislative process.”86. Twenty Fifth and Twenty Ninth Amendment in the famous case Keshavananda Bharti vs.State of kerela7which is also known as “Fundamental Rights Case”. The petitioner was challenged the validity ofTwenty Fourth, Twenty Fifth, and Twenty Ninth Amendment to the Constitution and also thequestion was involved was as to what extent of the amending power conferred by Art. 368 ofthe Constitution?. The Supreme Court overruled the Golak Nath’s case and held that” UnderArt. 368 Parliament can amend the fundamental rights but cannot take or abridges the BasicStructure of the Constitution”. According to this judgment of largest bench in the constitutionalhistory propounded the “Theory of Basic Structure: A Limitation on Amending Power.”This theory formulated By Supreme court through Doctrine of Judicial Review.


Judicial Review of Administrative Actions:

The Doctrine of Judicial Review is embodied in the Constitution and the subjectcan approach High Court and Supreme Court for the enforcement of fundamental rightguaranteed under the Constitution. If the executive or the Government abuses the power vestedin it or if the action id mala fide, the same can be quashed by the ordinary courts of law. All therule, regulations, ordinances, bye-laws, notifications, customs and usages are “laws” withinthe meaning of Art.13 of the Constitution and if they are inconsistent with or contrary to anyof the provisions thereof, they can be declared ultra vires by the Supreme Court and by theHigh Courts.. Judicial review of administrative action aims to protect citizens from abuse ofpower by any branch of State.”When the legislature confers discretion on a court of law or on an administrative authority, it also imposes responsibility that such discretion is exercised honestly, properly andreasonably” This view of ”DE Smith” clearly point out that discretion of administrativeaction should be used with care and caution. So, the abusive discretionary power ofAdministrative action must be review by judiciary. If judiciary founds any ground of illegalityof any administrative action, it is the duty of the judiciary to maintain check and balance.


Grounds of Judicial Review of Administrative Action:

The judicial review ofadministrative action can be exercised on the following grounds:

1.       Illegality: Means that the decision maker must correctly understand the law thatregulates his decision making power and must give effect to it.

2.       Irrationality: Means that the decision is so outrageous in its defiance of logic or ofaccepted moral standards that no sensible person could have arrived at such a decision.

3.       Procedural impropriety: Means that the procedure for taking administrative decisionand action must be fair, reasonable and just.

4.       Proportionality : Means in any administrative decision and action the end and meansrelationship must be rational.

5.       Unreasonableness: Means that either the facts do not warrant the conclusion reachedby the authority or the authority or by the decision is partial and unequal in its operation.But in the famous case Council of Civil Service Unions vs. Minister for the Civil Service,Lord Diplock highlighted the grounds by his observations “Judicial review has I thinkdeveloped to a stage by which the development has come about, one can conveniently classifyunder three heads the grounds on which administrative action is subject to control by judicialreview. The first ground I would call ‘illegality’, second ‘irrationality’ and the third‘procedural impropriety’.


Judicial Review of Parliamentary and State Legislative Actions:

Art. 245 and 246 of the Indian constitution gives legislatives powers to Parliament and StateLegislatures. Art. 245 (1) provides “subject to the provisions of the constitution, the parliamentmay make any laws for the whole and any part of the territory of India and a State Legislaturemay make a law for whole of the state and any part thereof”. The word “subject to theprovisions of the constitution” are imposed limitations to the Parliament and State Legislatureto make legislation. These words are the essence of Judicial Review of legislative actions inIndia. It ensure that legislation should be within the limitations of constitutional provision. These words provides power to the Courts to scrutinize the validity of legislation. The SupremeCourt have supreme power under Art. 141 which incorporates “Doctrine of Precedent” toimplement its own view regarding any conflicted issue and it’s also have binding force. Supreme Court gives us some relevant observations through judicial decisions regarding thelegislative actions of Parliament and State Legislatures.


In SP Sampat kumar vs. Union of India8 the constitutional validity of AdministrativeTribunal Act,1985 , was challenged on the ground that that the impugned Act by excluding thejurisdiction of the High Courts under Art. 226 and 227 in service matters had destroyed thejudicial review which was an essential feature of the constitution. The Supreme Court heldthat though the Act has excluded the judicial review exercised by the High Courts in servicematters, but it has not excluded it wholly as the jurisdiction of the Supreme Court under Art.32 and 136.Further held that” a law passed under Art. 323-A providing for the exclusion of the jurisdictionof the High Courts must provide an effective alternative institutional mechanism of authorityof judicial review. The judicial review which is an essential features of the constitution can betaken away from the particular area only if an alternative effective institutional mechanism orauthority is provided.” Again in L Chandra vs. Union of India9, clause 2(d) of Art. 323-A and clause 3(d) ofArt.323-B was challenged on the ground that these clauses excludes the jurisdiction of HighCourts in service matters. The Constitutional Bench unanimously held that “these provisionsare to the extent they exclude the jurisdiction of the High Courts and Supreme Courts underArt.226/227 and 32 of the constitution are unconstitutional as they damage the power ofjudicial review. The power of judicial review over Legislative Actions vested in the HighCourts and Supreme Court under Art. 226/227 and Art.32 is an inteegral part and it also formedpart of its basic structure.” Then, in the recent scenario, I.R. Coelho vs. State of Tamil Nadu10, the petitioner hadchallenged the various Central and State laws put in the Ninth Schedule including the Tamil Nadu Reservation Act. The Nine Judges Bench held that “any law placed in the Ninth Scheduleafter April 24, 1973 when Keshvananda Bharati’s case judgment was delivered will open tochallenge, the court said that the validity of any Ninth Schedule law has been upheld by the Supreme Court and it would not be open to challenge it again , but if a law is held to be violationof fundamental rights incorporated in Ninth Schedule after the judgment date of KeshvanandBharati‘s case, such a violation shall be open to challenge on the ground that it destroy ordamages the basic structure of constitution”. The Supreme court observed that “Judicial Review of legislative actions on the touchstone of the basic structure of the constitution”



Separation of power is the concept which correlated with all the organs, and it is the duty ofthe Court to maintain check and balance. But in India, Courts have no power to take cognizancesuo moto and to declare the law void, courts can initiate only when matter comes before thecourts. Courts cannot questioned to any political matter, but it cannot mean that the courtwould avoid giving its decision under a shelter of political question, its is not the duty of thecourt. Sometimes it seems to be that court evolves judicial legislations but it may not becorrect in India. Parliament has authority to make law in India, but in USA and UK courtsevolving judicial legislation. Judicial review checks the legislative power from delegating itsessential functions and also sometimes discourages the legislature from enacting void andunconstitutional legislation. In India and US, there are various constitutional limitationsimplicitly and also explicitly, which incorporates limitations to the law making power ofLegislature, such as legislature cannot go beyond its power to make law, it cannot make lawagainst the Principles of Natural Justice. Legislation cannot violate the fundamental rightswhich is the basic structure of the Constitution.


One organ should beaccountable to some other organ in any manner, but it cannot encroaches its limits. Itestablishes the concept of Rule of Law.As Justice P.N. Bhagwati in his minority judgment in Minerva Mills case observed “ It isfor the judiciary to uphold the Constitutional values and to enforce the Constitutionallimitations, that is the essence the Rule of law, which inter alia requires that the exercise ofpowers by the Government whether it be the legislative or the executive or any other authoritybe conditioned by the Constitution and the law”It enables the court to maintaining harmony in the State. By declaring invalid laws, courtprotects individual as well as collective rights also. The basic feature is to protect the individualrights, therefore there is a need of expansion of judicial review. To strengthen judicial reviewwill become strengthen the liberty and freedom of individual. The concept of judicial revieware also criticized. By the strict behavior of the Courts, sometimes it is criticized in thepolitical corridors. It should not be happen in any manner, because Supremacy of law prevailsin the interpretations of the Courts, we the people cannot questioned to the actions of judiciarybecause Supreme Court performing as the guardian of the Law of the land.



1.        5 U.S. 137 (1803)

2.        1950 AIR 27, 1950 SCR 88

3.        1955 AIR 781, 1955 SCR (2) 589

4.        1967 AIR 1643, 1967 SCR (2) 762

5.        1951 AIR 458, 1952 SCR 89

6.        1965 AIR 845, 1965 SCR (1) 933

7.        (1973) 4 SCC 225; AIR 1973 SC 1461

8.        1987 AIR 386, 1987 SCR (1) 435

9.        1997 (2) SCR 1186 

10.      (2007) 2 SCC1: AIR 2007 SC 861




Received on 08.02.2021         Modified on 21.02.2021

Accepted on 17.03.2021      ©AandV Publications All right reserved

Res.  J. Humanities and Social Sciences. 2021; 12(2):103-107.

DOI: 10.52711/2321-5828.2021.00015