Judicial Review in India vs USA

Judicial Review in India vs USA

Judicial Review: Constitutional Basis in India and USA

The NCERT Class XII textbook defines judicial review as “the power of the Supreme Court to examine the constitutionality of legislative and executive actions” (NCERT, Indian Constitution, 2020, p. 45). In India, the authority derives from Article 13(2), which renders any law inconsistent with the Constitution void, and Article 32, which empowers the Supreme Court to enforce that provision through writ jurisdiction. Article 226 extends analogous jurisdiction to High Courts for protection of fundamental rights and other matters. The Supreme Court’s power was doctrinally expanded by the Kesavananda Bharati v. State of Kerala judgment (1973 4 SCR 225), which articulated the basic‑structure doctrine limiting Parliament’s amendment competence.

In the United States, judicial review originates from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which interpreted Article III, Section 2 as conferring authority to invalidate statutes and executive actions that contravene the Constitution. The U.S. Constitution contains no explicit article granting review; the power is inferred from the case‑or‑controversy clause and the principle of constitutional supremacy.

Judicial review is not a legislative function; it does not permit courts to rewrite statutes, only to declare them void when they breach constitutional provisions. It is also not a political instrument; courts must apply the Constitution, not policy preferences, when exercising review.

💡 Key Insight: India’s Constitution expressly codifies judicial review (Article 13, 32, 226), whereas the United States derives the power solely from judicial interpretation of Article III.

[!infographic: "Timeline of landmark judicial review cases – Marbury v. Madison (1803) in the USA and Kesavananda Bharati v. State of Kerala (1973) in India"]<

⚖️ Comparative Analysis: India vs United States

📋 Classification: Sources of Judicial Review Authority

The section now presents a clear side‑by‑side comparison of the constitutional foundations of judicial review in India and the United States, classifies the primary sources of authority, and highlights key visual and conceptual take‑aways.

Constitutional Architecture: Judicial Review Mechanisms

India’s judicial review rests on Article 13(1), which declares any law inconsistent with the Constitution void, and on the Supreme Court’s power under Article 136 to grant special leave to appeal. Article 141 mandates that the Supreme Court’s decisions constitute binding precedent, creating a hierarchical stare‑decisis. The basic‑structure doctrine, articulated in Kesavananda Bharati v. State of Kerala (1973), empowers courts to invalidate constitutional amendments that threaten the Constitution’s core, as later reinforced by Minerva Mills Ltd. v. Union of India (1980). Article 21, Article 14, and Article 19 provide substantive due‑process grounds for striking down statutes that infringe personal liberty, equality, or free speech, respectively; the Maneka Gandhi v. Union of India (1978) decision expanded Article 21 into a procedural‑plus‑substantive right. Article 246 delineates Centre‑State legislative competence, and courts invoke it to resolve jurisdictional clashes via review. The Supreme Court (Original Jurisdiction) Act 1966 and the Supreme Court (Enlargement of Jurisdiction) Act 1976 codify original and appellate jurisdiction, while Article 136’s special leave jurisdiction supplements them. The 44th Amendment (1978) narrowed emergency‑era review by replacing “internal disturbance” with “armed rebellion,” curbing executive overreach observed during 1975‑77. The collegium system, affirmed in Supreme Court Advocates‑on‑Record Association v. Union of India (2015) after the NJAC Act 2014 was struck down, governs judicial appointments, preserving institutional independence.

💡 Key Insight: The basic‑structure doctrine is the only judicially created principle that allows Indian courts to strike down constitutional amendments, a power not mirrored in the U.S. system.

💡 Key Insight: The 44th Amendment’s redefinition of “armed rebellion” curbed the executive’s ability to invoke emergency powers, reflecting a post‑Emergency safeguard.

[!infographic: "Timeline of landmark Indian and US judicial review cases from Marbury v. Madison (1803) to Maneka Gandhi (1978)"]<

In the United States, Article III, Section 1 establishes the Supreme Court and inferior federal courts, granting them jurisdiction over “cases and controversies” and thereby the authority to interpret the Constitution. The Supreme Court’s original jurisdiction (Article III, Section 2) covers disputes between states, while its appellate jurisdiction is exercised through certiorari under Rule 1 of the Supreme Court Rules. Judicial review derives from Marbury v. Madison (1803), which inferred the power from the case‑or‑controversy clause and the supremacy clause (Article VI). The Fourteenth Amendment’s Due Process and Equal Protection Clauses (1868) extend review to state actions, as illustrated in Brown v. Board of Education (1954). The doctrine of “political questions” (e.g., Baker v. Carr 1962) limits review

Judicial Review Mechanism: Courts, Procedures, and Limits

The Indian Supreme Court derives its composition from Article 124, which fixes the Chief Justice of India and up to 33 puisne judges. Appointment follows the collegium system—Chief Justice plus senior judges recommend candidates to the President. Tenure ends at age 65; removal requires a parliamentary impeachment under Article 124(2). High Courts, created by Article 233, consist of a Chief Justice and a variable number of judges; appointments are made by the President after consultation with the Governor and the Chief Justice of the respective High Court. Judges retire at 62. Sub‑ordinate courts are staffed by civil‑service officers appointed by state governments under the respective State Judicial Service Acts.

Judicial review in India proceeds through three procedural channels. First, the Supreme Court exercises original jurisdiction under Article 131 for disputes between the Union and a State or between two or more States. Second, the Supreme Court entertains constitutional challenges via writ petitions filed directly under Article 32, though the text of the petition is not reiterated here. Third, High Courts entertain similar challenges under their original jurisdiction, often invoking the doctrine of public‑interest litigation (PIL) to broaden standing. After a petition is admitted, the court may issue a stay, appoint an amicus curiae, or refer the matter to a constitutional bench of at least five judges. The bench renders a judgment that binds all lower courts and, when the decision involves a constitutional amendment, triggers the basic‑structure doctrine articulated in Kesavananda Bharati v. State of Kerala (1973). The doctrine holds that Parliament cannot alter the essential features of the Constitution, thereby limiting legislative power despite the amendment power under Article 368.

💡 Key Insight: The basic‑structure doctrine is a uniquely Indian judicial principle that curtails Parliament’s amendment authority, a safeguard absent in the U.S. system.

[!infographic: "Flowchart of the Indian judicial review process: from petition filing, admission, stay, amicus curiae, constitutional bench, to binding judgment"]<

The United States Supreme Court’s composition is fixed by Article III, Section 1: one Chief Justice and eight Associate Justices. Appointment is by the President with Senate advice and consent; tenure is “during good behavior,” effectively life‑long unless impeachment by the House and conviction by the Senate. Federal Courts of Appeals (13 circuits) and District Courts (94 districts) mirror this appointment formula. Judges of the appellate and district courts retire at age 70 under the Judicial Retirement System of 1990.

💡 Key Insight: U.S. federal judges enjoy life tenure, a stark contrast to the fixed retirement ages for Indian judges.

[!infographic: "Timeline of landmark U.S. judicial review cases, starting with Marbury v. Madison (1803)"]<

U.S. judicial review originates from Marbury v. Madison (1803), which inferred

⚖️ Comparative Analysis: Indian Supreme Court vs. U.S. Supreme Court

These parallel structures highlight how both constitutions allocate judicial independence, yet differ markedly in tenure and removal mechanisms.

Judicial Review Trajectory: Marbury to Basic Structure

The United States inaugurated judicial review with Marbury v. Madison (1803), holding that the Supreme Court could nullify statutes contravening the Constitution. The New Deal era shifted the Court’s posture; West Coast Hotel v. Parrish (1937) introduced the “doctrine of constitutional accommodation,” granting deference to legislative judgments on economic regulation. The Warren Court expanded substantive rights through Roe v. Wade (1973), establishing a privacy right under the Due Process Clause. The 1984 Chevron U.S.A., Inc. v. Natural Resources Defense Council decision created a two‑step test for agency interpretation, cementing judicial deference to executive expertise. The 2000 Bush v. Gore (2000) illustrated judicial intervention in electoral disputes, while Citizens United v. Federal Election Commission (2010) broadened corporate speech protections. The 2022 Dobbs v. Jackson Women’s Health Organization (2022) reversed Roe, signalling a retrenchment of judicial activism.

[!infographic: "Timeline of significant US judicial review cases"]<

India’s post‑independence framework embedded judicial review in Articles 13, 32, 226, and 21. Early jurisprudence, exemplified by A.K. Gopalan v. State of Madras (1950), applied a narrow “procedure established by law” test. The Kesavananda Bharati v. State of Kerala (1973) forged the basic‑structure doctrine, limiting Parliament’s amending power and anchoring substantive review. Maneka Gandhi v. Union of India (1978) broadened procedural due‑process, requiring fairness in law‑making. The S.P. Gupta v. Union of India (1981) prompted the collegium system for judicial appointments, later reinforced by the Supreme Court’s Supreme Court Judges (NJAC) v. Union of India (2015), which struck down the National Judicial Appointments Commission Act 2014 and preserved collegial selection.

💡 Key Insight: The Kesavananda Bharati v. State of Kerala (1973) case introduced the basic-structure doctrine, significantly limiting Parliament's power to amend the Constitution.<

⚖️ Comparative Analysis: US vs India Judicial Review

Internationally, India’s ratification of the International Covenant on Civil and Political Rights (1979) and the UN Convention on the Rights of Persons with Disabilities (2007) expanded grounds for reviewing statutes against international standards.

[!infographic: "Map showing countries that have ratified the International Covenant on Civil and Political Rights"]<

Judicial Review Deficit: India vs USA Structural Tension

India’s “basic structure” doctrine, articulated in Kesavananda Bharati v. State of Kerala (1973), creates a judicial veto over constitutional amendments; the United States’ Marbury v. Madison (1803) entrenches judicial supremacy over legislative acts. The tension arises because India’s doctrine limits parliamentary sovereignty while the U.S. model permits expansive judicial overturning, yet both systems suffer from divergent implementation gaps.

💡 Key Insight: The CAG’s 2022 audit recorded 1.48 million pending High Court cases, a 12 % increase from the previous year, highlighting procedural failure despite Article 21’s guarantee of speedy justice.

The Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision sparked a U.S. “originalism” versus “living Constitution” debate, with Justice Clarence Thomas arguing for textual fidelity and Justice Sonia Sotomayor warning of politicized jurisprudence. In India, the M.C. Mehta v. Union of India (1987) environmental activism illustrates judicial overreach into policy, prompting the Law Commission’s Report No. 245 (2020) which recommends statutory limits on public interest litigation to curb docket overload.

💡 Key Insight: 68 % of district courts lack permanent judges (2023 NITI Aayog “Judicial Efficiency” note), inflating case pendency.

Parliamentary Standing Committee on Law (2022) highlighted executive interference in judge transfers, a claim corroborated by the 2023 NITI Aayog “Judicial Efficiency” note that 68 % of district courts lack permanent judges, inflating pendency. Critics such as Prof. Madhav Khosla argue that Justice Ranjan Gogoi’s 2021 proposal for a National Judicial Policy threatens independence, while proponents contend it addresses the “access‑to‑justice deficit” identified by the NCRB’s 2023 case‑disposal statistics (average 45 % clearance rate).

Reform proposals converge on two fronts: the Law Commission’s 2024 draft “Judicial Appointments Commission Bill” seeks transparent selection, and the Supreme Court’s 2023 directive for a “case‑management system” mirrors U.S. docket‑control practices. Both reforms intersect with federalism (Article 245) and human‑rights obligations under the International Covenant on Civil and Political Rights (1979), underscoring that the structural deficit in judicial review remains the principal obstacle to balanced constitutional governance.

[!infographic: "Timeline of landmark judicial‑review cases and reform milestones in India and the USA (1803‑2024)"]<

⚖️ Comparative Analysis: India vs USA

📋 Classification: Major Challenges to Judicial Review Implementation

💡 Key Insight: The NCRB’s 2023 statistics reveal an average case‑disposal clearance rate of only 45 %, underscoring the “access‑to‑justice deficit” that reform proposals aim to remedy.

📊 Quick Reference: Judicial Review in India vs USA

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