A Detailed Study Of The Concept And Origin Of Judicial Review (USA And India)

Ishita, LLM, Maharashtra National Law University, Aurangabad

INTRODUCTION

According to the words of John Hart Ely, “The purpose of the court is to protect the process of coordinating popular government with minority protection” by this statement he meant that the concept of judicial review has highly enhanced the power of the courts and has opened new arenas to interpretation of laws.

Judicial review in its simplest meaning is a method of the court which includes a judge reviewing the legality of the state’s or the governmental action. By the exercise of judicial review the court determines that whether the action is lawful or unlawful and to grant appropriate relief. In India, we also follow the concept of judicial review which is adopted from the constitution of the United States of America wherein the powers of the parliament are not unlimited and the division of power can be seen between the center and the states. The judicial review in the USA expressly elaborates the power of the court to review the constitutionality and the unconstitutionality of the acts of the congress as well as the state legislature.

The judiciary by the exercise of this power keeps the legislative and the executive organs within the purview of the constitution, we can take this as an example of – separation of powers in a modern governmental system but this system is practiced and implemented differently in different countries as they have different hierarchy of governmental norms as a result the scope and the practice of judicial review varies from country to country. For a better understanding it can be understood in terms of two different legal systems- the common law system and the civil law system and also by the means of theories on democracy such as the legislative supremacy and the separation of powers theories. For example, UK being a common law country follows the system of parliamentary supremacy and thus the judicial review of legislative acts is not permitted whereas in the USA, the constitutional supremacy is supreme and likewise in India the basic structure doctrine and the constitutional supremacy prevails which also established the review of legislative acts as well. Judicial review also guarantees the protection of socio-economic rights of the people.