A Comparative Analysis of The Doctrine of Judicial Review in India, US And UK

Mahim Gupta; Dr. Amit Kashyap

doi:10.53724/lrd/v8n4.5

Authors

Mahim Gupta LLM Student, School of Law, Lovely Professional University, Punjab (India). https://orcid.org/0009-0005-9107-2986
Dr. Amit Kashyap Associate Professor (Law), UGC NET/SRF, School of Law, Lovely Professional University, Phagwara (India). https://orcid.org/0000-0003-3437-1371

DOI:

https://doi.org/10.53724/lrd/v8n4.5

Keywords:

Judicial Review, Judiciary, Protection, Fundamental Rights, Democracy

Abstract

The present work undertakes a comprehensive investigation and comparative assessment of the doctrine of judicial review in the nation of India, the US, and the United Kingdom. Judicial review is a legal principle that empowers the judiciary to scrutinise and invalidate actions undertaken by both the legislative and executive wings of government which are inconsistent with the constitution and violate fundamental rights. The study begins by examining the historical evolution of the doctrine of judicial review in each country, highlighting the differences and similarities in the legal framework and constitutional provisions that underpin the doctrine. The study thereafter evaluates the implementation of the doctrine of judicial review in every country, with a specific emphasis on the judiciary's role, the extent of review, and the criteria for review. This study will provide a thorough examination of judicial review within India, including the necessary procedures, in order to offer a clear and concise understanding of the concept. This analysis will include the historical background, aim, and extent of judicial review within the Indian legal system. The study also examines the influence of the doctrine of judicial review in each country on the division of powers, democratic governance, and the safeguarding of basic rights. The text examines the difficulties and constraints associated with the notion of judicial review in different countries and proposes suggestions for enhancing its effectiveness. In addition, the study will analyse the present condition of judicial review within each of the three nations, and will investigate the challenges and issues now confronting the idea in each country. The paper concludes by doing a comparative examination of the idea of judicial review within India, the United States of America, and the UK, emphasising both the similarities and differences. The study emphasises that while the three countries are committed to upholding the rule of law and protecting fundamental rights, the implementation and interpretation of the concept of judicial review differ in each jurisdiction. The chapter also mention some suggestions like courts must analyse the constitutionality of cooperative federalism in conflicts involving federal legislation, such as power distribution and interstate trade. This will enhance the cohesion of federal democracies. Judicial review is designed to interpret and enforce current laws. Furthermore, the autonomous nature of the judiciary is a crucial factor whenever the court possesses the power to examine any statute. A judiciary that lacks dependence is unable to deliver a just and impartial verdict.

Metrics

Metrics Loading ...

References

Shekhawat, V. S. “Judicial review in India: Maxims and limitations.” The Indian Journal of Political Science, 55(2), 1994, pp. 177-182.

Amos, J., & Walton, R. “Introduction to French Law” 3, 1979, Oxford Clarundorn Press.

Emery, C. T., & Smythey, B. (1986). Judicial Review. Sweet & Maxwell.

Singh Deo, S. P. “Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar.” 1952, SCR 89.

Ray, S. N., “The crisis of judicial review in India.” The Indian Journal of Political Science, 29, 1968, pp. 29-35.

Subramanian, A. “The Evolution of Institutions in India and Its Relationship with Economic Growth.” Oxford Review of Economic Policy, 23, 2007, pp. 196–220.

Cappelletti, M. “Judicial Review in Comparative Perspective. California Law Review, 58, 1970, pp. 1017–1053.

Corwin, E. S. “Marbury v. Madison and the Doctrine of Judicial Review. The American Historical Review, 20, 1914, pp. 213–225.

Godhana, G. P. “Judicial Review on Compulsory Retirement: A Point of View.” Madras Law Journal, 1999, pp. 1–8.

Shetty, K. P. K. “Judicial review and impostor institution.” Cochin University Law Review, 20, 1–44.

Corwin, E. S. “Marbury v. Madison and the doctrine of judicial review.” Michigan Law Review, 12, 1914, pp. 538-572.

Gupta, G. “Judicial Supremacy through Judicial Review.” Central India Law Quarterly, 1995, pp. 103-136.

Ibid

Mahajan, K. “Judicial Review of Pardon: Is it Activism.” AIR, 2008, 91.

Bhatt, J. N. (1999). Separation of Powers: The Role of Judicial Review Juristic or Forensic: Evolving or Elusive. AIT.

Pandey, T. N. “Administrative Discretion and Judicial Review: Concept and Ideologies.” Indian Journal of Public Administration, 33(4), 1987, pp. 895-911.

Ibid

Lehner, P. H. A. (1983). Judicial Review of Administrative Inaction. Columbia Law Review, 83, 627-689.

Plucknett, T. F. T. “Bonham's Case and Judicial Review.” Harvard Law Review, 40, 1926, pp. 30-70.

Ibid

Prakash, S. B., & Yoo, J. C. “The Origins of Judicial Review.” The University of Chicago Law Review, 70, 2003, pp. 887-982.

supra note at 9.

Rao, V. N., & Reddy, G. B. “Doctrine of Judicial Review and Tribunals: Speed Breakers Ahead.” Journal of The Indian Law Institute, 39, 1997, pp. 411-423.

supra note at 14.

Alexender, R. D. “We, the People: Experiments with Judicial Review.” NUALS Journal, 2, 2008, pp. 112-144.

supra note at 13

Dayal, S. “Judicial Review and the Constitution (Forty-Fourth Amendment) Bill.” Punjab University Law Review, 28, 1976, pp. 95-109.

Rao, V. N., & Reddy, G. B. “Doctrine of Judicial Review and Tribunals: Speed Breakers Ahead.” Journal of the Indian Law Institute, 39, 1997, pp. 411-423.

Freeman, S. “Constitutional Democracy and the Legitimacy of Judicial Review. Law and Philosophy, 19, 2000, pp. 329-406.

supra note at 3.

Lever, Annabelle, “Democracy and Judicial Review: Are They Really Incompatible?”, 7 Perspectives on Politics, 2009, pp. 805–22

Dayal, S. Judicial Review and the Constitution (Forty-Fourth Amendment) Bill. Punjab University Law Review, 28, 1976, pp. 95-109.

Uddin, M. M., & Nabi, R. “Judicial Review Of Constitutional Amendments In Light Of The ‘Political Question’ Doctrine: A Comparative Study Of The Jurisprudence Of Supreme Courts Of Bangladesh, India And The United States.” Journal of the Indian Law Institute, 58, 2016, pp. 313-336.

Shiviah. “Judicial Review, Right to Property and Constitutional Amendment.” Journal of Constitutional and Parliamentary Studies, 5, 1971, pp. 77-105.

Pratibha Ravi v. SurajKumar 1985 AIR 628.

lexender, R. D. “We, the People: Experiments with Judicial Review.” NUALS Journal, 2, 2008, pp. 112-144.

Gupta, A. “Judicial review in the USA and India: A comparative study.” Indian Bar Review, 17, 1990, 83.

ibid

Deener, D. “Judicial Review in Modern Constitutional Systems.” The American Political Science Review, 46, 1952, pp. 1079-1099.

Gadbois, G. “Indian Supreme Court Judges: A Portrait.” Law and Society Review, 3, 1968 pp. 317-336.

Supra note at 21.

Sinha, P. “A Comparative study of the significance of Judicial Review in the United Kingdom, United States of America, and India.” Indian Journal of Constitutional Law, 9, 2015, pp. 173-190.

Supra note 12.

Andhyarujina, T. R. Judicial Review in India and England: Comparative Trends. Law and Justice, 1995, pp. 277-286

Bhandari, V. Courts and contempt powers in India: The case of Jolly LLB-2. OxHRH Blog.

Bhandare, M. C. “Four Decades of Indian Democracy, Paramount of Legislature and Judicial Review.” Journal of Constitutional and Parliamentary Studies, 27, 1993, pp. 19-28.

Agrawal, T. “Judicial Review: A Comparative Study between USA, UK, and India.” International Journal of Law, Management & Humanities, 5, 2022 890.

Chhetri, Y. (2008). Judicial Review and Election Petitions. AIR, 29.

Shekhawat, V. S. “Judicial Review in India: Maxims and Limitations.” The Indian Journal of Political Science, 55, 1994, pp. 177-182.

ibid

Vaze, V. V. “Executive and Judiciary: An overview.” JILI, 15, 1973, pp.275-284.

Supra note 44.

Jain, S. K. “Illegality: A Ground of Judicial Review in Administrative Discretion.” 2004 pp. 77-89.

Vishakha v. State of Rajasthan (1997) 6 SCC 241(India)

Minerva Mills Ltd. & Ors. v. Union of India, AIR (1980) SC 1789.

Navtej Singh Johar v. Union of India AIR (2018) SC 4321 (India)

Pandey, S. P. “Evolution and Development of the Concept of Judicial Review in India: An Evaluation.” Journal of Law and Conflict Resolution, 4, 2012, pp. 1-11.

Deshpande, V. S. Judicial Review-Expansion and Self-Restraint. Journal of the Indian Law Institute, 5, 1973, pp. 531-552

Van Alstyne, W. W. “Marbury v. Madison and the Doctrine of Judicial Review.” Columbia Law Review, 72, 1972, pp. 143-180

Gupta, P. "Criticism of Judicial Review in India, USA, and UK: A Comparative Analysis." Journal of Law, Policy and Globalization, vol. 29, 2015, pp. 8-15.

Tan, S.H. "Between Judicial Oligarchy and Parliamentary Supremacy: Understanding the Court's Dilemma in Constitutional Judicial Review." Singapore Journal of Legal Studies, 2016, pp. 307-335.