A comparative study on the scope judicial review between UK,USA and India
Comparative Study on the Scope of Judicial Review: UK vs USA vs India
What is Judicial Review?
Judicial Review is the power of courts to examine the actions of the legislative, executive, and sometimes administrative branches of government to ensure they conform to the Constitution or laws. If the court finds any action or legislation unconstitutional or unlawful, it can invalidate that action or law.
1. Judicial Review in the United Kingdom
Features:
The UK follows the doctrine of Parliamentary Sovereignty, which means Parliament is supreme and can make or repeal any law.
Judicial review in the UK primarily focuses on the legality, rationality, and procedural propriety of executive actions, not on the validity of Acts of Parliament.
UK courts cannot declare an Act of Parliament invalid.
Judicial review is rooted in common law and focuses on administrative decisions rather than statutes.
Key grounds: Illegality, irrationality (Wednesbury unreasonableness), and procedural impropriety.
Key Case Laws:
Council of Civil Service Unions v. Minister for the Civil Service (1985) (GCHQ case)
Established the modern scope of judicial review over executive action.
Courts can review executive decisions for legality, irrationality, and procedural fairness.
However, certain matters like national security may limit review.
R v. Secretary of State for the Home Department, ex parte Fire Brigades Union (1995)
Held that the government must honor statutory duties unless Parliament authorizes otherwise.
Courts can enforce statutory obligations but cannot invalidate Acts of Parliament.
2. Judicial Review in the United States
Features:
Judicial review is established by the Constitution through Marbury v. Madison (1803).
US courts have power to declare both executive actions and legislation unconstitutional.
Courts can strike down federal and state laws conflicting with the US Constitution.
The Supreme Court plays a strong role in safeguarding constitutional rights and limiting government power.
Judicial review is broad and substantive in scope.
Key Case Laws:
Marbury v. Madison (1803)
Established judicial review in the US.
Courts have the power to declare acts of Congress unconstitutional.
Foundation for constitutional supremacy.
Brown v. Board of Education (1954)
Struck down racial segregation in public schools as unconstitutional.
Showed the power of judicial review in protecting fundamental rights.
United States v. Nixon (1974)
Reinforced limits on executive power.
Ruled that the President is not above the law.
3. Judicial Review in India
Features:
Judicial review is explicitly provided under the Constitution (Articles 13, 32, 131, 226, 227, etc.).
Courts can invalidate laws, executive actions, and even constitutional amendments violating the basic structure.
India follows a written Constitution with constitutional supremacy.
Judicial review is broad and expansive, encompassing legislative, executive, and constitutional amendments.
Courts protect fundamental rights and ensure federal balance.
Key Case Laws:
Kesavananda Bharati v. State of Kerala (1973)
Established the basic structure doctrine.
Parliament cannot amend the Constitution to destroy its basic structure.
Judicial review limits constitutional amendments.
Maneka Gandhi v. Union of India (1978)
Expanded the scope of personal liberty under Article 21.
Judicial review protects substantive due process and fundamental rights.
Minerva Mills v. Union of India (1980)
Reiterated the basic structure doctrine.
Invalidated amendments destroying judicial review itself.
S.R. Bommai v. Union of India (1994)
Asserted judicial review over federal disputes and President’s Rule.
Ensured constitutional governance in states.
Detailed Explanation of Selected Cases
1. Marbury v. Madison (1803) (USA)
William Marbury petitioned the Supreme Court to compel the delivery of his commission.
Chief Justice Marshall declared that it was the judiciary’s duty to review laws and declare them unconstitutional if they conflict with the Constitution.
This case set the foundation for judicial review, making the Constitution supreme over any legislative act.
2. Kesavananda Bharati v. State of Kerala (1973) (India)
Challenge to Parliament’s power to amend the Constitution.
Supreme Court held that while Parliament has wide powers, it cannot alter the basic structure of the Constitution.
This limits Parliament and protects constitutional supremacy.
This case defines the unique scope of judicial review in India.
3. Council of Civil Service Unions v. Minister for the Civil Service (1985) (UK)
GCHQ employees challenged the government’s decision to ban trade union membership.
The court held that even government decisions based on prerogative powers can be reviewed for procedural fairness.
Established three grounds of judicial review: illegality, irrationality, and procedural impropriety.
However, the UK court reaffirmed it cannot invalidate Acts of Parliament.
4. Maneka Gandhi v. Union of India (1978) (India)
Maneka Gandhi’s passport was impounded without procedure.
The court ruled that any law depriving personal liberty must be “just, fair and reasonable” under Article 21.
Expanded judicial review to protect fundamental rights beyond just procedural compliance.
5. Brown v. Board of Education (1954) (USA)
Supreme Court struck down the doctrine of “separate but equal” in education.
Demonstrated judicial review’s power to protect constitutional rights and transform society.
Marked an important use of judicial review to address social injustice.
Summary Table of Differences
| Aspect | UK | USA | India |
|---|---|---|---|
| Basis of Judicial Review | Common Law & Prerogative Powers | Constitutional (Marbury v. Madison) | Constitutional (Explicitly Provided) |
| Power to invalidate legislation | No (Parliament supreme) | Yes (Congress & State laws) | Yes (including constitutional amendments) |
| Scope over Executive | Yes, for legality & fairness | Broad, including constitutionality | Broad, including constitutional validity |
| Role of Judiciary | Limited in legislative domain | Strong check on legislature & executive | Very strong, basic structure doctrine |
| Protection of Rights | Administrative law focus | Fundamental rights & liberties | Fundamental rights & basic structure |
| Example Landmark Case | Council of Civil Service Unions (1985) | Marbury v. Madison (1803) | Kesavananda Bharati (1973) |
Conclusion
UK has a limited scope of judicial review focusing on executive decisions but not Acts of Parliament.
USA practices broad judicial review with courts empowered to strike down laws and executive actions violating the Constitution.
India has the most expansive judicial review, including the power to invalidate constitutional amendments violating the basic structure.
Judicial review plays a vital role in maintaining constitutional supremacy, protecting rights, and checking abuse of power in all three countries, but the scope and extent vary significantly due to different constitutional frameworks.
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