Judicial Review: Can Amendments Be Challenged?

The concept of judicial review is a highly debated topic in the United States and India. Judicial review is the process by which the judiciary reviews legislative or executive actions and determines their compatibility with a higher authority, such as the constitution. In the US, the Supreme Court has the power of judicial review, allowing it to strike down laws that violate the Constitution. This power has been criticized by some as unconstitutional, arguing that the Tenth Amendment reserves powers not delegated to the federal government for the states or the people. Others, like Theodore Roosevelt, have criticized the interpretation of the 14th Amendment by the courts. In India, judicial review is considered a basic right under the constitution, and the Supreme Court has the power to declare laws passed by the legislature void if they violate fundamental rights. The Indian judiciary has also asserted its right to nullify any law approved by the legislature.

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Judicial review in the US

Judicial review in the United States is the power of the Supreme Court to review and interpret the law and has been a source of controversy and debate. The concept of judicial review is not explicitly mentioned in the US Constitution, but it has been inferred from various provisions and established through precedent. The Supreme Court has the power to declare a Legislative or Executive act in violation of the Constitution, and this power of judicial review is considered essential to maintaining a balance of power between the three branches of government.

The Supreme Court first asserted its authority to conduct judicial review in Marbury v. Madison in 1803. In this case, the Court held that an Act of Congress that is contrary to the Constitution is invalid. This established the principle that the Constitution is the supreme law of the land, and the Court has the final say in interpreting it.

The Supreme Court has used its power of judicial review to strike down state statutes and federal laws that it deems unconstitutional. For example, in Fletcher v. Peck (1810), the Court struck down a state statute for the first time, finding it to be inconsistent with the Constitution. The Court has also ruled on the applicability of Constitutional rights and found certain laws to be in violation of those rights.

However, the power of judicial review has been criticised by some as being undemocratic and granting too much power to the judiciary. Critics argue that the federal courts should not have the sole power to interpret the Constitution, as it allows the national government to interpret its restrictions without input from the states. Notable critics include Theodore Roosevelt and William Jennings Bryan, who, during the Progressive Era, argued for an amendment to allow a popular recall of judges and judicial decisions.

Despite these criticisms, judicial review has retained its authority, and the Supreme Court continues to play a crucial role in interpreting the Constitution and safeguarding civil rights and liberties.

Judicial review in India

The concept of judicial review in India plays a pivotal role in upholding the Constitution and safeguarding the fundamental rights of individuals. The Supreme Court of India, through its powers of judicial review, ensures that laws, executive actions, and legislative enactments are in consonance with the Constitution. Judicial review refers to the power of the judiciary to examine the constitutionality of legislative and executive actions. It ensures that all laws, orders, and actions comply with the Constitution. Judicial review is a key function of the Supreme Court of India under Article 32, where it has the authority to strike down unconstitutional laws or executive decisions. This power is crucial for maintaining the rule of law and ensuring that no authority exceeds its constitutional limits.

Several landmark judgments have solidified the role of judicial review in India. In Keshavananda Bharati v. State of Kerala (1973), the Supreme Court held that the basic structure of the Constitution could not be amended by Parliament. This case expanded the concept of judicial review to include the protection of the Constitution's basic structure. In Minerva Mills v. Union of India (1980), the judgment reaffirmed the power of judicial review and established that judicial review is an essential feature of the Constitution. It held that any law inconsistent with the Constitution's basic structure could be struck down. In Maneka Gandhi v. Union of India (1978), the Supreme Court expanded the scope of Article 21, which guarantees the right to life and personal liberty. The Court interpreted Article 21 to include the right to travel abroad and struck down a law that violated this right, showcasing the power of judicial review in protecting fundamental rights.

The power of judicial review vested in the Supreme Court under Article 32 is a cornerstone of Indian democracy. It ensures that the Constitution remains supreme and that the rights of individuals are safeguarded. While there are limitations to judicial review, its importance in maintaining the integrity of the democratic system cannot be overstated. The role of judicial review in India is not just about striking down unconstitutional laws but also about interpreting the Constitution to reflect the changing needs and values of society. Through this power, the Supreme Court of India ensures that justice is not only done but is seen to be done, strengthening the faith of citizens in the legal system.

Judicial review and the separation of powers

The concept of judicial review has been adopted from the American Constitution. In India, the judiciary has the power to declare any law passed by the legislature to be void if it contravenes the Constitution. The power of judicial review is considered a prerequisite for the development of a new civilization to protect individual liberty and rights. It is also an important component of the rule of law, which is a basic feature of the Indian Constitution.

In the US, the Supreme Court has the power of judicial review, which it uses to ensure that each branch of government recognizes the limits of its own power. The Court can declare a Legislative or Executive act in violation of the Constitution, though this ability is not explicitly mentioned in the text of the Constitution itself. The power of judicial review was criticized heavily during the Progressive Era by politicians like Theodore Roosevelt and William Jennings Bryan, who argued for an amendment to allow a popular recall of judges and judicial decisions.

In India, the power of judicial review is included in the Articles 226 and 227 of the Constitution regarding the High Courts, and in the Articles 32 and 136 of the Constitution regarding the Supreme Court. The judiciary in India has come to control every aspect of governmental and public functions through judicial review.

The Supreme Court of India has the power to examine the constitutionality of administrative action and strike down laws that are incompatible with a higher authority. For example, in Brij Bhurshan vs. State of Delhi, the Supreme Court struck down the East Punjab Public Safety Act 1950, on the ground that pre-censorship restricted the freedom of the press. In the US, the Supreme Court first struck down a state statute as unconstitutional in 1796 in Ware v. Hylton, finding that a Virginia statute regarding pre-Revolutionary war debts was inconsistent with the peace treaty between the United States and Great Britain.

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Judicial review and the amending process

The amending process in the United States is a complex and contentious issue that has been debated and analysed extensively. The power of judicial review, vested in the Supreme Court, plays a crucial role in this process. While some scholars argue that constitutional amendment questions are justiciable, others contend that the amending process is "political" and not subject to judicial interference.

The Supreme Court has historically exercised its power of judicial review to strike down state statutes and acts of Congress deemed contrary to the Constitution. Notably, in Marbury v. Madison in 1803, the Court established its authority to review acts of Congress and declare them unconstitutional. This case solidified the Court's role in interpreting and safeguarding the Constitution.

However, the applicability of judicial review to the amending process itself is more nuanced. Some scholars argue that the amending process is inherently political and falls outside the scope of judicial review. They contend that the process, from the proposal of amendments to their ratification, is a political function delegated to Congress and the states, not the judiciary. This view highlights the separation of powers and the independence of the political branches in the amending process.

On the other hand, proponents of judicial review's applicability argue that it is necessary to ensure that amendments do not violate fundamental rights or the ""basic structure" of the Constitution. They assert that the judiciary has a duty to protect individual liberties and rights by reviewing amendments and ensuring they do not contravene the Constitution's fundamental principles. This perspective aligns with the concept of judicial review as a safeguard against potential abuses of power by the legislative or executive branches.

In the Indian context, judicial review of constitutional amendments is explicitly recognised in the Indian Constitution. Articles 226, 227, 32, and 136 of the Constitution vest the High Courts and the Supreme Court with the power of judicial review. The Indian judiciary has actively exercised this power, as seen in landmark cases such as Kesavananda Bharati (1973), where the doctrine of "basic structure" was developed to protect fundamental rights during constitutional amendments.

In conclusion, the role of judicial review in the amending process varies depending on the legal and constitutional framework of a country. While the United States grapples with the complexities of judicial review's applicability, India has explicitly incorporated it into its constitutional framework, recognising its importance in safeguarding fundamental rights and maintaining the balance of powers between different branches of government.

Judicial review and the Supreme Court

The concept of judicial review has been adopted from the American Constitution. Judicial review is considered a prerequisite for protecting individual liberty and rights. It is a process under which the legislative or executive actions are subject to review by the judiciary. The judiciary can invalidate laws, acts, and governmental actions that are incompatible with a higher authority. For example, an executive decision could be invalidated for being unlawful, or a statute could be invalidated for violating the constitution.

In the United States, the Supreme Court has the power of judicial review, which allows it to declare a Legislative or Executive act in violation of the Constitution. This power is derived from Article III of the Constitution, which establishes the federal judiciary. The Supreme Court is the highest court in the land and serves as the court of last resort for those seeking justice. It plays an essential role in ensuring that each branch of the government recognizes its limits.

The power of judicial review has been criticized by some as being undemocratic, as it gives the courts the authority to decide on the fate of laws passed by the legislature, which represents the will of the people. There have also been arguments that judicial review by federal courts is unconstitutional. The first argument is that the power of judicial review is not explicitly delegated to the federal courts in the Constitution, and that the Tenth Amendment reserves this power for the states or the people. The second argument is that allowing only federal courts to conduct judicial review allows the national government to interpret its restrictions without input from the states, which have the power to ratify changes to the Constitution.

Despite these criticisms, the Supreme Court has a long history of exercising judicial review. One notable case is Marbury v. Madison in 1803, where the Supreme Court established its authority to strike down state laws found to be in violation of the Constitution. Another example is Hollingsworth v. Virginia in 1798, where the Supreme Court found that it did not have jurisdiction over the case due to the limitations of the Eleventh Amendment. This was an implicit finding that the Judiciary Act of 1789, which would have granted the Court jurisdiction, was unconstitutional.

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