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JUDICIAL REVIEW: UNITED STATES OF AMERICA AND

INDIA

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 Hughes1

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 a
democracy to help the Judiciary to carry out its functions in accordance with the
Constitution. 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 that
they 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 different
meanings in different countries. In some countries it is used as the power of the courts
to check the constitutionality of any enacted law and in some countries it only checks
the Administrative actions.

Judicial review could be understood in terms of two different legal systems – The
Civil Law System and the Common Law System OR by theories on democracy – the
Legislative Supremacy and the Separation of Powers theory. For instance in United
Kingdom which is a common law country, Parliamentary Supremacy has been
established 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 Basic
Structure of Constitution2 and Constitutional Supremacy established, permits the
review of the Legislative Acts as well.

To make a comparison between the US and India with respect to Judicial Review,

1
11th 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 and
what has been the background of establishment of such a concept.

No doubt that the Doctrine of Judicial Review has been recognised as an outstanding
American contribution to the world culture. It filled in the gap that the Rule of Law in
England had left open. Under the Rule of Law the executive action would have to
comply with the established standards of legality and propriety, but there is nothing of
the effect for parliamentary legislation. Thus Judicial Review rightly fits itself into
this vacuum to review the legislative action as well. James Bradley Thayer has
warned that the exercise of the power of Judicial Review “is always attended with a
serious evil,” namely, that of depriving people of “the political experience and the
moral education and stimulus that comes from fighting the question out in ordinary
way , and correcting their own errors” and with the tendency “to dwarf the political
capacity of the people and to deaden its sense of moral responsibility”3 yet India has
not only incorporated the Doctrine in her Constitution , but has also lived with it all
these years since January 26th ,1950,when the operation of the Constitution
commenced.

Thus I shall first elaborate on the concept of Judicial Review as in the US, and then go
on to elaborate Judicial Review in India as it is from the US that India imbibed this
concept.

Judicial Review

1. Tracing the History of Judicial Review in USA

The Scholars trace the origins of Judicial Review to Dr Bonham’s case4. Sir Edward
Coke, of England's Court of Common Pleas, stated that “when an act of parliament is
against common right and reason or repugnant, or impossible to be performed, the
common law will control it, and adjudge such act to be void”. Coke believed that the
common lawyer possessed “artificial reason of the law” and that this capacity elevated
him to nearly equal footing with king and Parliament. According to Coke, special
3
Perspectives on the American Constitutional Influence on the Constitution of India , Professor
P.K.Tripathi
4
77 E.R.646[1610]
learning required to interpret the law placed it above politics. By the time Justice
Coke wrote his Institutes of the Law of England (Fourth Part) in 1644, he accepted in
his writings in the Institutes “ that Parliament possessed transcendent and abundant
jurisdiction which could not be confined…within any bounds”5

In The Federalist Papers6, Alexander Hamilton endorsed the idea of judicial review
and provided one of its most compelling ideological foundations. Hamilton wrote 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 the
nature of its functions, will always be the least dangerous to the political rights of the
Constitution. … [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 no
active 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 has


followed Hamilton's thinking that judges have a special capacity and responsibility to
expound the meaning of the Constitution. By 1787, eight colonies of US had
incorporated 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 they
are to guard. … They would declare it void,” insisted future Chief Justice John
Marshall at the 1788 Virginia Ratifying Convention. Marshall supplied a practical
meaning to these words in the classic case of Marbury v. Madison (1803)7, in which
he securely rooted the modern doctrinal source of Judicial Review. In this case, the
Supreme 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.” He
answered 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.”
5
Twenty Second Class Schedule , Comparative Constitutional Law, Dr.T.N.Arora
6
THE FEDERALIST NO. 78
7
5 U.S (1 Cranch) 137 (1803)
Marshall argued, from the supremacy clause of Article 6, that no act of Congress that
violates any part of the Constitution can be valid. Rather, he wrote, it must be
declared unconstitutional and repealed. Marshall simultaneously limited and
expanded the Court's power; less power became more. The chief justice accepted the
inherent limitation placed on the scope of judicial power, but he boldly asserted that
the Court had a responsibility to say what the Constitution meant.

Although some nineteenth‐century state court decisions claimed no more for judicial
authority 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, composed


“Instructions to a Federal Prosecutory” in 1807, attempting to advance the prosecution
of Aaron Burr for treason. Jefferson argued against citing Marbury and proposed “to
have [the decision] denied to be law.” He went on to hold “the three great branches
of the government should be coordinate, and independent of each other.” Jefferson
believed each branch of the government had the right to decide for itself the
constitutionality of matters before it and objected to a claim that the Court's judgment
was superior to that of the other branches. His efforts on behalf of repeal of the
Judiciary Act of 1801 and the first judicial impeachments supported the doctrine of
“co‐ordinate construction,” whereby each branch of the federal government interprets
the Constitution for itself.

The Pennsylvania case of Eakin v. Raub (1825)8 provided criticism of Marbury from
the state's chief judge, John Gibson. His dissent in that case is viewed as the best
exposition 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. Gibson argued that “[i]f the judiciary will inquire into
anything 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 has
been said to be coordinate” (p. 330). Gibson's reading of the Constitution led him to
observe, “[H]ad it been intended to interpose the judiciary as an additional barrier,

8
12 S & R Penn. Rep. 330 Pa. (1825)
the matter would surely not have been left in doubt” (p. 331). To Gibson, the written
Constitution was accessible to the public and it was the public's ability to hold the
legislature 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 century
after Marbury, despite the Court's activism with respect to state legislation. The
Supreme Court of the late nineteenth century realized the full potential of judicial
review over both federal and state legislation. Marshall had asserted it, but after 1824
he was reduced to seeing its reach weaken in the face of political assault on its use
against 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 a
crowded field of precedent. Thus the Court's creation of the doctrines of substantive
due process and freedom of contract were innovations far in advance of anything
adopted 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 by
1930s 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 economic


regulation, 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 Fiske Stone enunciated this
new direction obscurely, in Footnote Four of United States v. Carolene Products Co.
(1938)9 stating that the Court would now scrutinize three categories of issues: “where
legislation 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 undesirable
legislation”, and “statutes directed at particular religious … or national … or racial
minorities” (p. 153). The Court lost no time in putting that agenda into effect.

9
304 U.S. 144 (1938)
The desegregation decision, Brown v. Board of Education (1954)10, criminal
procedure holdings like Mapp v. Ohio (1961)11, and the abortion decision in Roe v.
Wade (1973) 12epitomize the most recent period of judicial activism. 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 abortion
accommodated women's expanded roles in the marketplace. All of these decisions
mobilized 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's
use 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 which
the Court ordered the President to turn over politically damaging materials, came at
the height of a dramatic confrontation between Congress and the presidency. The
political context in which the decision was reached boosted the authority of the Court
in American political culture, because the Justices ordered the President to act against
his own interests. The President obeyed. This decision was widely heralded as saving
the country from executive tyranny and was accepted as an assertion of the authority
of 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 than
1,000 state laws. The great majority of these invalidations of federal and state acts
have occurred during the 20th century. The Supreme Court declared only 3 federal
acts and 53 state laws unconstitutional from 1789 until 1868. Most of the laws
declared unconstitutional since 1925 have involved civil liberties guaranteed by the
Bill 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 James
Madison said it would be at the inception of the republic.

2. Tracing the history of Judicial Review in India

10
347 U.S. 483 (1954)
11
367 U.S. 643 (1961)
12
410 U.S. 113 (1973)
13
418 U.S. 683 (1974)
In England there is no written Constitution and Parliament is supreme, there is no
Judicial Review of the legislation enacted by the Parliament. India was a British
colony. Britain, however extended the practice of Judicial Review of legislation to its
colonies such as India, whose constituent acts enacted by British Parliament laid
down the limits of the legislative power vested in the colonial legislatures. India
therefore experienced Judicial Review of legislations as well as executive acts since
the days of British rule. The courts in India followed the policy of maximum judicial
restraint. The judicial attitude in countries ruled by Britain was to interfere with
legislative acts only if they clearly transgressed the limits drawn upon their powers.
Judicial attitude was influenced by the theory of Parliamentary supremacy and the
courts denied that they had anything to do with the policy or principles beyond what
was clearly laid down by the words.

The seeds of Judicial Review could have been said to be sown in the form of the
Government 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 Indians
that their Constitution should contain a declaration of fundamental rights was
conceded.

Much earlier, the British parliament had reconciled to a doctrine to a limited extent by
enacting federal constitutions for the Dominions of Canada14 and Australia15 These
constitutions provided the models for The Government of India Act. The Act
provided for three legislative lists. Two of these were based on Canadian pattern and
enumerated the matters on which the federal government and the regional
governments, respectively, had the exclusive power to legislate. But like the
Australian Constitution, the Act also provided a concurrent list comprising matters
over 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 at
a strong centre.

14
The British North America Act ,1867
15
The Commonwealth of Australia Act, 1900
There were two tiers of Government created through the Act- one at the State Level
and 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 forum
of 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 to
confining each within the constraints of the written constitution.

The second stage of development of Judicial Review in India could be attributed to


the direct and massive borrowings from the US Bill of Rights. The Indians saw in the
Bill of Rights an assurance to the minorities of their rights, and a safeguard against
arbitrary 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 void16. The rights were defined and
restrictions upon them were also defined with precision so as to leave the least
discretion with the courts. Unlike the Constitution of the United States which gave
rights in unqualified terms and left it to courts to define their limit and legitimised
restrictions on them, the Constitution of India enumerated the rights and restrictions.

The makers of the Indian Constitution were apprehensive of the wider role assumed
of the Supreme Court of the United States though interpretation of the ‘Due Process’
clause 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 the
courts to invalidate laws that might be disliked by the judges. The debates in the
Constituent Assembly show that the makers of the constitution wanted limited
Judicial Review. Most of the admirers of the Westminster model of democracy
wanted the courts in India to interpret the constitution so as to cause minimal
interference to the legislature. The courts were supposed to interpret the Constitution
not in terms of what it should be but in terms of what it is. The courts need not be
concerned about what the effect of an interpretation will be but should state what law
is. 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
16
Article 13 (1) and (2)
court is conceived as that of the mere interpreter of the constitution with emphasis on
the letter rather than on the spirit of the constitution.

A written constitution imposes limits on the powers of the legislatures. If it is a


federal constitution, the limits are imposed by the distribution of power between the
federal government and the units and if the constitution contains the Bill of Rights,
further limits are imposed on the legislature. Judicial Review under a written
Constitution with a Bill of Rights cannot rermain merely technocratic because the
expressions used in the Bill of Rights such as ‘Equality Before the Law’, ‘Equal
Protection Law’, ‘Personal Liberty’, ‘The Procedure Established by Law’ or ‘
Freedom of Speech and Expression’, are open – textured and continue to acquire new
meanings as society evolves and social change occurs. A constitutional court there
cannot 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 political
implications.

The Supreme Court of India started off as a technocratic court in the 1950s but slowly
started acquiring more power through constitutional interpretations. Its transformation
into an activist court has been gradual and imperceptible. In fact the roots of judicial
activism are to be seen in the Court’s earlier assertion regarding the nature of Judicial
Review. In A.K. Gopalan v. Madras 17although the Court concealed its role in a
narrow manner, it asserted that its power of Judicial Review was inherent in the very
nature of the written constitution. Article 13 of the Constitution said that the State
shall make no law that takes away or abridges the Fundamental Rights and if any such
law 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 court
said;
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 was
infringed by any legislative enactment, the Court has always the power to declare the
enactment, to the extent it transgresses the limits invalid.

17
(1950) SCR 88(100)
The Indian Supreme Court acknowledged the Marshallian Doctrine of the
Constitution being the higher or paramount or fundamental law of the land. As Chief
Justice Kania observed18 –
“It is difficult upon any general principles, to limit the omnipotence of the sovereign
legislative power by judicial interposition, except so far as the express words of a
written Constitution give that authority…[But] it is only in express constitutional
provisions limiting legislative power and controlling the temporary will of the
majority by a permanent and paramount law settled by the deliberate wisdom of the
nation that one can find a safe and sold ground for the authority of Courts of Justice
to declare void any legislative enactment”

In 1967, in the Golaknath’s case19, by a majority of six against five judges ,it was held
that the parliament could not amend the constitution so as to take way or abridge the
fundamental rights. This seemed preposterous that when it was conceived. It
challenged the basic assumptions of judicial process and democracy. In Kesavananda
Bharati v Kerala20, eleven out of thirteen judges held that Golaknath had been
wrongly decided. However while conceding that the constituent power under article
368 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 that
the Court would have the last say in respect of the Constitution. Judicial review was
held to be one of the basic features of the constitution in this case. This was a
revolutionary decision and belied all theoretical assumptions till then.

The intervention of the Emergency of 1975 and several constitutional amendments


enacted during that period revealed the importance of the counter-majoritarian nature
of Judicial Review. When the Kesavanada decision was given, the basic structure
doctrine appeared to be unsustainable because of its elitist and anti-majoritarian
stance. But during the emergency, the amendments sought to do away with the checks
and balances implicit in the Constitution, the basic structure doctrine became the
rallying point for those who wanted to preserve the Constitution.
18
Ibid p 107
19
Golak Nath v.State of Punjab, (1967) 2 SCR 762
20
Supra note 2
A Comparative Perspective

Provisions in the Constitution conferring the power of Judicial Review

Though 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 no
express 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 the
Legislature or any other organ are ‘subject to the provisions of the
Constitution’, e.g. Arts. 245,309,327,328, which unmistakably establish that
the Constitution provides the higher law, which limits the power of the organs
of 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). Conversely
there 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 the
Constitution as a higher law above the Legislature, in matters which it
expressly provides or prohibits. If therefore, ever arises any conflict between
the Legislature and the relevant provisions of the Constitution, it should be the
duty of the Judiciary to enforce the provision of the Constitution against the
offending 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 the
mandates of the Constitution as mentioned in those articles, shall be ‘void’

The Constitution of the US does not elaborate on such provisions and thus the Indian
Constitution 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 above.

Judicial Review and Right to Property


Although the Constituent Assembly unanimously agreed to incorporate the
fundamental rights to the constitution and expressly provided that a law inconsistent
with any of those fundamental rights would be void, maximum care was taken to
avoid 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 many
reactionary decisions. It had held a law abolishing slavery unconstitutional on the
ground that it violated the slave owner right to property. This meant that the Court
regarded a slave as the property of his owner21. A legislation against child labour was
struck down as being against the doctrine of freedom of contract.22 The Court also
invalidated several laws enacted under President Roosevelt’s New Deal program.

The memories of such judicial decisions were under fresh in the minds of the makers
of the Indian Constitution. India had to bring about a massive program of land reform
and change in property relation during which this issue came into prominence. The
members of the Constituent Assembly were apprehensive of the negative judicial
attitude that might prevent legitimate socio economic reforms. It was during these
debates that the Constitution makers spelt out what model of judicial review they
wanted for India. They obviously did not want the American model under which the
Court could examine whether the law was just and fair and what was liberty and
equality but wanted the British model of Judicial Review, which ascertained whether
the Legislature acted within its limits and vigilantly scrutinized the acts of the
Executive to make sure they were according to the Law.

Due Process of Law versus Procedure Established by Law

The due process clause found in the fifth and fourteen amendment of the Constitution
of the United States was purposely avoided and another phrase, ‘Procedure
Established by Law’ was preferred by the Constitution makers in the article 21, which

21
Dred Scott v Stanford 60 U.S. 393 (1856).
22
Lochner v New York 198 U.S 45 (1904).
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 Justice
Frankfurter of the US Supreme Court. Sir B N Rau, the Constitutional Advisor to the
Constituent Assembly in his report to President of the Assembly said;
“Indeed, Justice Frankfurter considered that the power of judicial review implied in
the 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 an
unfair burden at the judiciary; and Justice Lerned Hand considered that it will be
better to have all fundamental rights as moral presets than as legal fetters in the
constitution23.

Dr. Ambedkar had also expressed this dilemma of all constitutional lawyers - Is it
desirable to leave the question of liberty to the majority in the parliament which is
often motivated by partisan political considerations? Is it desirable to leave it to a few
judges? Although Dr.Ambedkar’s speech reflects the dilemma of the makers of the
constitution regarding the scope of Judicial Review, the opinion seems to have been
equally divided between those who prefer supremacy in parliament and those who
wanted parliament’s laws to be subject to Judicial Review. The very fact that the
Constituent Assembly incorporated the declaration of Fundamental Rights in Part III
and gave to Supreme Court the special responsibility to protect those rights was a
clear evidence of the constitution’s preference for Judicial Review with reference to
fundamental principles of freedom, equality and justice. While Nehru opted for a
restricted scope of Judicial Review, Ambedkar was not free from doubts about the
wisdom of giving to parliament the freedom to lay down any procedure and any law
restricting liberty. This was so because Nehru was brought up on the British notions
of Rule of Law and therefore felt secure with a sovereign Parliament whereas
Ambedkar who had fought not only against colonial rule but also against the tyranny
of the majority felt that there was a need to protect individual liberty and minority
rights from the majoritarian rule that may set in after the disappearance of the colonial
regime

23
Clause 16 of his draft, referred to in his package quoted was to this effect: “No person shall be
deprived of his life or personal liberty without due process of law, nor shall be any person be denied
equality before the law within the territories of the Federation’
Thus the words ‘procedure established by law’ instead of due process of law came
into 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 people
repose 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 to
err 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 media
etc. This is an important tool to keep a check on the fact that the trust that the framers
of the Constitution have put in the Judiciary of the country, is respected and is
maintained with responsibility. While answering a question about corruption and
accountability and refuting the charges that judiciary does not represent the will of the
people, Justice Y.K Sabharwal said in an interview25
“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 the
will 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 which
reflects 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 be
derived form the faith that the people repose in the Judiciary. As, an ‘elected body’ is
only one source of legitimacy and the not the only one.

Conclusion

24
AIR 1978 SC 597
25
Dr P.S.Lathwal ,”Good Governance VIS-VIS Judicial Activism”,M.D.U Law Journal,Vol X,Part-
I,2005
After reading the essay it can be easily inferred that the US had laid the foundations
for 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 the
concept from the US and put it into its Constitution. The power of Judicial Review as
a concept was deliberated over by the framers of our Constitution, also it took some
landmark judgements to give clarity to what the framers had intended while providing
for the same in the Constitution of India.

BIBLIOGRAPHY

BOOKS
1. Arun Shourie, Courts and their Judgements (Rupa & Co,New Delhi, First
Edition,2008)
2. Dr. Durga Das Basu, Comparitive Constitutional Law (Wadhwa &
Company,Nagpur, Second Edition 2008)
3. Fali.S.Nariman, Before Memory Fades-An Autobiography (Hay
House Publishers (India) Pvt. Ltd.,2010)
4. Dr.J.N.Pandey , The Constitutional Law of India (Central Law
Agency,Allahabad,46th Edition 2009)
5. S.P.Sathe , Judicial Activism in India-Transgressing Borders and
Enforcing Limits ( Oxford University Press, India, Second Edition 2010)

ARTICLES
1. Professor P.K.Tripathi, Perspectives on the American
Constitutional Influence on the Constitution of India.
2. Dr P.S.Lathwal,Good Governance VIS-À-VIS Judicial
Activism,M.D.U Law Journal,Vol.X,Part-I,2005
3. Susanta Chatterji , “For Public Administration”: Is Judicial
Activism Really Deterrent to Legsltaive Anarchy and executive
Tyranny?,The Administrator,Vol. XLII April-June 1997.pp9-24

INTERNET
1. Wolfe, Christopher (1994). The American doctrine of judicial supremacy.
Rowman & Littlefield. ISBN 9780822630265. http://books.google.com/?
id=Kev8w1pfnaUC&pg=PA3&dq=judicial+review. (this book traces the
doctrine's history in an international/comparative fashion)