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Comparison between the power of court: India, US and England.

Starting with the judicial review power of courts in India, I will try to draw a comparison between India, the US, and the UK. 


In democratic countries constitution is supreme. All other laws of land derive authority from the constitution. Law is identical to language, as it keeps on changing, from time to time, depending on the changes in the society that it serves. Laws are carved by the legislative and implemented by the executive. According to the constitution, it is scrutinized by courts to check the validity of rules before implementation. Judicial Review is the essential feature of our Indian constitution laid down in a very famous case INDIRA GANDHI V. RAJ NARAIN, 1975. 


Types of Judicial review:


Judicial review of-


1) Constitutional Amendments


2) Legislation of parliament; state and subordinate legislation. 


3) Executive action of union, state, and authorities under the state. 


Essential conditions for Judicial review:


1) Written Constitution.


2) Division of power between center and state. 


3) System of Fundamental rights. 


The Supreme court used judicial review in the following cases:


1) Golaknath Case (1967)


2) The bank nationalization case(1970)


3) The Privy Purse abolition case(1971) 


4) The kesavananda case(1973)


5) The Minerva Mills(1980) 


6) 99th Constitutional Amendment, 2014 - null and void. 


7) NJAC, 2014 - null and void. 


Constitutional Provision to support judicial review:


1) ART 372(1) - Judicial review of pre-constitutional legislation. 


2) ART 13 - It declares any law which contravenes Fundamental rights to be void. 


3) ART 137 - An extraordinary power given to the Supreme court to review any judgment or order made by it. 


Generally, the grounds of judicial review are - 


1) Jurisdictional error 


2) Irrationality


3) Procedural impropriety


4) Proportionality


5) Legitimate expectations


IRRATIONALITY - 


1) When an administrative authority is designated with discretionary power, then it must be exerted reasonably. 


2) A decision, deemed irrational, shall be made in defiance to logic or, no sensible person on given facts and circumstances could arrive at such a decision. 


3) Irrationality as the ground was improved, in the case of Associated Provincial Picture House v. Wednesbury aka "Wednesbury Test"


Significance of Judicial review 


1) It ensures the SUPREMACY OF CONSTITUTION. 


2) It ensures that neither legislative nor executive misuse power vested in them. 


3) It protects the fundamental rights of people. 


4) It maintains the Federal balance. 


5) It ensures the Independence of the Judiciary. 


USA


The court, in the USA, can declare any legislation null and void. Not only on the action of Congress but also the action of the President. Judicial review is the main element of the constitutional scheme of the USA. Judicial review checks the action of the state government also. 


Marbury v. Madison in this case, when President John Adam did not win for the second term, in the year 1801, he utilized his last days to make political arrangements. When Thomas Jefferson took office, he asked his secretary of state to stop conveying messages of John Adams printed material to administrative authorities. This way, William Marbury was denied new employments. So he filed a petition (Mandamous) in US supreme tribunal, to compel Madison to convey the commission. First historic case in which US supreme court declared an act of unconstitutional congress with full judicial authority, which broadened the scope of Judicial review in the USA. 


UK


Dr. Bonham v Cambridge University was the foundation case of judicial review in England, but in another case, City London v. Wood Chief Justice concluded, "An act of parliament can do no wrong, though it may do some pretty odd thing". It led to the Doctrine of Parliamentary sovereignty, which left no power with courts to determine the legality of Parliament's enactment. 


With an unwritten constitution, there is unlimited power vested in parliament which leads to legislative supremacy. The legislative act of parliament is primary legislation and, the delegation of parliament to the executive with legislative guidance is Secondary legislation. Primary legislation is not in the purview of judicial review, except few cases (after the formation of the European Convention of Human rights). Secondary legislation is judicially reviewed in all cases.


Conclusion


The scope of judicial review is enormous in India than US and UK. In the UK, the absence of a written constitution limits the court's power of judicial review. USA's rigid constitution and vague nature create a bit ambiguous scenario. But in the case of India, our constitution is not only highly explicit, rigorous and, flexible but also the lengthiest constitution. India has a unique blend of parliamentary sovereignty and judicial review. Parliament is supreme in legislative enactments until the law passed isn't challenged in court. The court can declare any law null and void if it is in contravention with Fundamental rights.The Supreme court's interpretation of laws are to be accepted by all subordinate courts in India. The Supreme court acts as custodian of constitutional values.


In the words of DD BASU, "The Indian constitution has wonderfully adopted the trail between the supremacy of the US judiciary and the UK's principles of Parliamentary sovereignty. In the Indian constitution, both Parliament and Judiciary are supreme in their respective fields."


 


(Edited by Nishat Aftabi)


 


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