Abstract
The Article below is research on the contrast of the emergence, scope and use of the concept of judicial review in the United States of America, France and India. The judicial review is a critical factor in democratic government. The individuality of a judicial system to decide whether the activities of the legislative and the Judiciary state are reasonable or not is a crucial component of the Implementation of democracy. The division of power must be executed well in order to create a balance between the three organs. In Articles 13, 32 and 226, the concept of judicial review is established such that the Supreme Court and the High Court gets the authority to enforce the fundamental rights which is given by the Constitution to the citizens of the country. In France, on the contrary, it is a civil type of a legal system, with the Judiciary having a limited power. The Constitutional Council was established in 1958 to do judicial review, and an overhaul of the major reforms was expected to be provided by the reforms referred to as Question prioritized Constitution Nelle. Although, it had not been fixed on the Constitution, Marbury v. Judicial review was a concept that was developed in Madison case (1809). In the present case, the court could pronounce the invalidity of the laws on the basis of the assessment of the constitutionality, therefore affirming supremacy of the constitution. The article highlights the manner in which every legal authority upholds the rule-of-law and personal liberties respectively striking a compromise between the lawmaking authority and the judicial oversight.
I. Introduction
Judicial Review is a term that shows the ability of the court to look into the constitutional merits on legislative and executive actions with the aim of ensuring that any law, acts, decision, and omissions of the public authorities do not go against the Constitution of a given country. Under the Administrative law standards, the court is tasked with the mandate of interpretation as well as the enforcement of the provisions of statutes. The concept of separation of power has been internalized in the modern society in countries everywhere around the world. It confirms that sovereignty of the state must be split and shared equally among its organs, that is, the Legislature, the Executive, and the Judiciary. Written constitutions were adopted by modern democracies in an attempt to avoid potential abuse of power by the executive and legislature, to control their power and authority. The Constitution also gives the judiciary the power to protect these personal rights against the state whenever an action by the state deprives the citizens off their rights. Article 13 of the Indian Constitution gives the judiciary power to declare unconstitutional any legislature that contravenes the fundamental rights that are provided by Part III of the Constitution. This is despite the fact that France did have a written constitution since 1791. It also failed at the beginning to provide the judiciary with the power to repeal the laws that had been enacted by the legislature. France being a civil law country believes in a strict separation of powers between the legislature, the executive and the Judiciary. Nevertheless, the constitutional review of the legislation has been conducted since 1985 not by the regular courts but by the Constitutional Council or Conseil Constitutional. The process of Judicial review is not at all referred to in the US constitution. The Judicial review in the USA was initiated through a court ruling, and some conventions have enabled the Judicial review to persist. Chief Justice, John Marshall, made a ground breaking decision that guaranteed structural or constitutional provisions, as well as the concept of judicial review in USA.
II. Evolution of judicial review
The Idea of Judicial review was essentially first introduced in the United States in the famous Marbury v. Madison Case. To be specific, it is after World War II, The Concept of judicial review gains popularity in the United States. Although the US Constitution doesn’t specifically grant the right to judicial review, Article III of the US Constitution endows the Supreme Court and lower courts established by the Congress with judicial authority. In Marbury Vs Madison, the court declared that the law that contravenes the Constitution is unconstitutional, established the idea in the United States. In India, The Apex court and the high courts have been granted judicial review authority by the Indian Constitution since its inception. Contrary To United Unites States, the Apex court had repeatedly affirmed that the courts have the authority to review constitutional amendments.2 Articles 13, 32, and 226 of the Indian Constitution Incorporate judicial review which was modeled after the United States. According to V.R Krishna Ayer (2006) Judicial review of the activities of the legislature and executive is essential as it upholds the Constitution of India.
III. Judicial review in united states
The Rule of law acts as the foundation of the Constitutionally Democratic written Constitution of The United States. The core of this Federal Constitution is the separation of Powers provided. Judicial review is one of the main procedures used to check the legality of the laws. In the United Stated, the Judiciary has the power to review the acts of the president and the Congress and declare them void if they are not constitutionally valid. Although Judicial review is not explicitly covered in The Constitution of the United States, Article III and IV impliedly States about the concept.
The Bonham’s Case (1610, UK) has left a significant impact in the history of judicial review in American Judicial Review system.4 In United States vs Tale Todd, The Supreme Court of United states (1794) is one of the earliest decisions that gave rise to judicial review in the United States. In 1803, In Marbury vs Madison5, the supreme court once more exercised its power of judicial power to declare an act of congress unconstitutional. Other significant cases include Heyburn’s Case (1792) and Hylton v. United States (1796). The scope of Judicial review has been expanded since the Marbury Case. In Reed V. Town of Gilbert. It was held that a rigorous scrutiny and precise judicial review is required for all content- based laws.
IV. Judicial review in France
During the years Leading up to French revolution, Judges who were appointed by the king himself would get king offers of judicial proclamations. This system was highly corrupt, sluggish and weak which is why the republicans were not in favor of this system. Due to these conditions the system was highly inconvenient to a strict partitioning of power by rigid division and weak judiciary of the French state that was created after 1789. The judges were not granted the power and authority to scrutinize the laws enacted by the parliament or even create laws through establishing precedents. This was based on the theory of the jean- Jacques Rousseau who believed that law-giving was the will of the people.
Judicial Review was first attempted through the Establishment of Constitutional Council (the CC) in the 1958 constitution of the fifth Republic. The number of members was nine and they were all elected to have 11-year term. Also, the council could only hear the bills currently under debate by the legislature and could not hear bill that had not been referred to the council to be reviewed on constitutionality. In 2008, major changes were introduced to the French judicial review system which was amended. Article 61 of the French Constitution states that both Acts and Bills should be vetoed to constitutional council before promulgation to ensure that they do not contradict the provisions of the constitution. Article 61 may be cited under the Constitutional Council to review any statutory provisions in terms of their constitutionality. Also, Article 62 provides that a provision in a law as a law that has been held unconstitutional by a clause stated in Article 61, the Constitutional Council must make the same repeal.
The Indian Constitution in Part III, which is supplemented by Article 13, expresses that anyone may draw in the aforementioned article to question the law breaking any of the fundamental rights before the Supreme Court (Article 32) or High Court (Article 226). The lawsuit to declare a law constitution is under article 61 of the French Constitution and may be presented in a separate petition and does not have to be part of a litigation.
V. Judicial review in India
The Judicial review doctrine is important as a guardian in the anti-denial of any rights granted by the constitution to any citizen. The judicial evaluation is perceived as a compulsory part of the society because it enables them to participate in the political and cognitive process within the parliamentary system of government. The firmness of social equality is established through the use of rule of law in every facet of legislative acts and this principle of rule of law can never be changed even, all the courts must abide by the rule of law. Judicial review refers to the separation of power combined with the rule of law. There are specific stipulations concerning the notion of the Judicial review which apply to the rights granted to the citizens under the Constitution of India both on an individual level and on a collective one. That provision today known as the heart and soul of the constitution reads as follows:
“The State shall not enact any legislation depriving or prejudging the rights granted by this Part and any legislation enacted contrary to this conviction shall, to the degree of the contravention, be invalid.”
The body that has the power to question the legitimacy of the legislative acts made is the supreme court and the High courts to ensure the fundamental rights pegged down in the Part III of the constitution are not compromised. The supreme court of India is mandated to enforce the Fundamental rights on the basis of article 32 of the constitution. Article 13 also refers to the laws that infringe the fundamental rights and all of those laws are deemed to be invalid, unreasonable and unconstitutional. Any pre-constitutional laws are unconstitutional because it lacks conformity to the basic rights presented in the constitution. Article 21 of the Constitution states this.
“No human being can be denied his life or personal liberty without process provided by a law.”
The case of Manekha Gandhi as against Union of India ruled that the provisions of equality, non-arbitrariness and reasonability set out in Article 14, 19, and 21 ought’s to be strictly looked at as one in order to determine governmental restraints on personal freedoms.
Citizens have a right to straightly petition the Supreme Court to enshrine their basic rights as the provisions of the rights to constitutional remedy have been offered in Art. 32 of the Indian Constitution. It grants the Supreme Court the power to enforce the basic rights by writs, i.e., Habeas corpus, Mandamus, Prohibition, Quo Warranto, and Certiorri. According to the Articles II in the Indian Constitution, the High Court has the power to grant writs to enforce part III of the Constitution. First, the Central and state laws that are included in the 9 the schedule of the Constitution, may not be challenged based on the fact that they infringe on the fundamental rights. Due to the notorious case of the IR Coelho Case, it has been declared later that the laws stipulated in the Ninth Schedule could be questioned as well on the grounds of their constitutional relatability. Judicial review has already gained permanency in India Judicial system following the decisions made after 1973 and at this stage, Judicial review is a basic constitutional provision.
VI. Scope of judicial review
Evaluation of laws passed by the legislative and checking whether they are constitutional and ensuring they do not conflict with the core values outlined in the constitution. The laws are declared to be void if it is determined to be unconstitutional. In this Kind of review, the constitutional provisions are applied to relevant legislation. This covers the Government policies, administrative rulings and executive orders. Apart from legislative and judicial actions, Courts can also evaluate the administrative decisions made by the government. In some countries, the courts examine the constitutional amendments as well. Constitutional supremacy is established in virtue of the concept of judicial review. It relies on the separation of powers, since an independent judiciary is required for the evaluation. This independence of the judiciary enables it to make decisions free from any other external influence.
VII. Conclusion
In conclusion, the power of Judicial review can be defined as the jurisdiction of the superior courts, i.e., The High Court, The Court of Appeal, and The Supreme Court to review the acts, decisions and omissions of public authorities in order to establishing order to establish whether they have exceeded or abused their powers. 6Courts play an Important role in maintaining justice and democracy. By examining and declaring laws, which violate fundamental rights, unconstitutional, it enables the state to protect the individual rights. All government actions should align with the constitution, and the Indian judiciary is responsible for ensuring this and should prevent the legislation from not doing so. To maintain justice and fairness and to ensure public justice, this evaluation of the laws is very much required. In the United States, the judges have the authority to declare a law unconstitutional and overturn it, indicating a strong judicial review system. The judicial review system is more limited in many European nations, such as France and Germany.7 The legal system in India emphasizes that any law that violates the Constitution of India may be overturned by the system. Judicial review protects the fundamental rights of citizens as well as maintains the primacy of the Constitution. Therefore, the Judiciary serves as a defender of democracy and individual liberties by ensuring that legislation or the executive does not go beyond the powers conferred to it by the constitution.
VIII. References
- P Cane, Administrative law 36-41 (2011).
- H.F Rawlings, Judicial Review the Control of Government 135 (1986)
- Nikhil Gangappa Mantur, Comparative Study of Judicial Review in India, USA and
U.K., Int’l J. of Research & Analytical Reviews 550
- Chinmoy Roy, Judicial Review and the Indian Courts, SSRN (2012).
- A Comparative Study Between India and France, 11 Nat’l Univ. L. J. (Hein Online)
- Brian Thompson, Cases and Materials on Constitutional and Administrative law 492 (12th ed. 2015).
- Austin, Granville. The Indian Constitution: Cornerstone of a Nation. Oxford: Clarendon Press, 1966.
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
Name – Aditi Singh
BBA LL.B.(H)
10th Semester
Amity University