Borrowing A Doctrine: The Reincarnation Of American Judicial Review In India
- IJLLR Journal
- 4 days ago
- 1 min read
Anushka Sharma, LLM (IP), Amity Law School, Noida
ABSTRACT
Judicial review is the power of the judiciary to check the constitutional validity of the laws made by parliament and executive bodies of government and protect the constitution. This doctrine was originally developed by the US supreme court. Indian constitutional makers borrowed the doctrine of judicial review from the constitution of the United States of America. Although no express provision was there in the American constitution regarding judicial review, it was devised by the courts in the case of Marbury vs. Madison, 1803.
However, in the Indian constitution, the doctrine, even though not named as such, but has been provided expressly. The language of many constitutional provisions of India begin with clearly stating that ‘Laws would be subject to the express provisions of the constitution...’. There are many countries that provide similar power of reviewing the law made by the parliament to other bodies of the government or a different authority formed for this purpose or to the parliament itself. But this form of reviewing authority has a major drawback i.e., in case of a direct violation of a right of any person, he cannot get a direct remedy.
This paper will examine the development of the doctrine of judicial review in USA and India. But the concept of has been altered as per the needs of our country from what was followed in USA. However, since India is a developing country and one of the world’s largest democracy the concept may further be clarified in case any need arises with the changes in the society.
Keywords: constitution, judiciary, judicial review, higher law, judicial overreach
