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 America2 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.Tripathi4 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.Arora6 THE FEDERALIST NO. 787 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 ,186715 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 10719 Golak Nath v.State of Punjab, (1967) 2 SCR 76220 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 59725 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)