A COMPARATIVE STUDY ON THE SCOPE OF JUDICIAL

REVIEW BETWEEN THE UK, USA, AND INDIA

A Dissertation to be submitted in Partial Fulfillment of the

requirement for the Award of Degree of Bachelor of Law
In
University of Lucknow

By
Nikke Kumar
ROLL Number- 2212003110120
LL.B. (3 YEAR)
VI SEMESTER

Under the Guidance

Of
Dr. Avaneet Kumar

BABA SAHEB BHIM RAO AMBEDKAR LAW COLLEGE

HARIKANSH GARHI RAEBARELI ROAD LUCKNOW

2025
 2

ACKNOWLEDGEMENTS

First and foremost, I would like my deaf and sincere gratia research supervisor DR. Avaneet

Kumar, Supervisor giving wonderful opportunity to do research and for providing invaluable

gulden this research. His dynamism, salon, sincerity and motivation have deeply inspired me.

He has taught me the methodology to carry out the research and to present a research work as

clearly as possible.

I would like to acknowledge his sincere efforts of providing in-depth sessions en my seminar

topic which were very helpful and enlightening. It effectively helped me to understand the

research topic better.

I am deeply indebted to all teacher staffs for their constant presence, and his invaluable

guidance without which this project report would not have been possible.

Next, I would like to sincerely thank my seniors, friends and family members, whose

suggestions and guidance assisted me throughout the entire tenure of making the project. I

would also like to express my special thanks to those original thinkers, 1 have taken the

privilege to quote.

Last, but not the least, I would like to express my heartfelt gratitude towards the examiner

who would take pains to go through the project. Though a lot of care has been taken, there

may be scope for some improvement. All criticism and suggestions are kindly invited.

Nikke Kumar
 3

DECLARATION

I hereby declare that the dissertation entitled " A Comparative Study on the Scope of

Judicial Review between the UK, USA, and India" Submitted by me is the fulfillment of

requirements for the award of the degree of "Bachelor Of Laws of University of Lucknow, is

a record of my own work carried under the supervision of DR. Avaneet Kumar, Supervisor,

College of Baba Saheb Bhim Rao Ambedkar Law College Raebareli Road, Lucknow.

"To the best of my knowledge his dissertation has been smile,

Date Nikke Kumar

LLB 3 YEAR 6 SEMESTER
ROLL NO. 2212003110120
 4

TO WHOM SOEVER IT MAY CONCERN

This is to certify that Mr. Nikke Kumar, LL.B-3 year semester-6 has completed his

dissertation topic " A Comparative Study on the Scope of Judicial Review between the

UK, USA, and India " under my supervision for the award of degree of Bachelor Laws at

University of Lucknow. Dissertation supervisor will not be responsible for type of plagiarism

typological error or any factual legal infirmities.

He has completed all four melodies as required under the ordinance and the dissertation is

forwarded for evaluation.

Date:

DR. Avaneet Kumar

Supervisor
Baba Saheb Bhim Rao Ambedkar Law College
Harikansh Garhi Raebareli Road Lucknow
 5

LIST OF CASES

1. Council of Civil Service Unions v. Minister for the Civil Service[1985] AC 374

Established the three grounds of judicial review (illegality, irrationality, and

procedural impropriety).

2. R v. Secretary of State for the Home Department, ex parte Daly[2001] UKHL

26Emphasized proportionality as a standard of review under the Human Rights Act.

3. R (on the application of Miller) v. The Prime Minister (Miller II/Prorogation

case)[2019] UKSC 41Declared the Prime Minister‘s advice to prorogue Parliament

unlawful.

4. Anisminic Ltd v. Foreign Compensation Commission[1969] 2 AC 147Extended the

scope of judicial review over error of law.

5. R (on the application of UNISON) v. Lord Chancellor[2017] UKSC 51Judicial

review of employment tribunal fees—access to justice as a constitutional principle.

United States – Judicial Review Case

1. Marbury v. Madison5 U.S. (1 Cranch) 137 (1803)Established the doctrine of judicial

review in the USA.

2. Brown v. Board of Education347 U.S. 483 (1954)Declared racial segregation in

public schools unconstitutional.

3. United States v. Nixon418 U.S. 683 (1974)Affirmed the principle that the President is

not above the law.

4. Roe v. Wade410 U.S. 113 (1973)Judicial review of abortion laws—privacy rights

under the Constitution.

 6

5. Bush v. Gore531 U.S. 98 (2000)Judicial review of electoral process—equal

protection clause.

6. Obergefell v. Hodges576 U.S. 644 (2015)Judicial review of marriage laws—legalized

same-sex marriage nationwide.

7. Lochner v. New York198 U.S. 45 (1905)Early example of judicial activism (later

overturned).

India – Judicial Review Cases

1. Kesavananda Bharati v. State of KeralaAIR 1973 SC 1461Introduced the Basic

Structure doctrine—judicial review of constitutional amendments.

2. Minerva Mills Ltd. v. Union of IndiaAIR 1980 SC 1789Reinforced the Basic

Structure doctrine.

3. I.R. Coelho v. State of Tamil Nadu(2007) 2 SCC 1Judicial review of laws inserted in

the Ninth Schedule post-Kesavananda Bharati.

4. A.K. Gopalan v. State of MadrasAIR 1950 SC 27Early interpretation of fundamental

rights—later overruled.

5. Maneka Gandhi v. Union of IndiaAIR 1978 SC 597Expanded the scope of Article

21—due process and judicial review.

6. State of Madras v. V.G. RowAIR 1952 SC 196Judicial review of preventive detention

laws.

7. Golak Nath v. State of PunjabAIR 1967 SC 1643Earlier position on Parliament's

power to amend Fundamental Rights.

8. Chandrachud v. Union of India (also known as ADM Jabalpur case)AIR 1976 SC

1207Controversial suspension of Fundamental Rights during Emergency.

 7

9. Indira Nehru Gandhi v. Raj NarainAIR 1975 SC 2299Judicial review of constitutional

amendment impacting election disputes.

10. Navtej Singh Johar v. Union of India(2018) 10 SCC 1Judicial review of IPC Section

377—decriminalized homosexuality.
 8

TABLE OF CONTENTS

1. Acknowledgement
2. Certificate
3. Declaration
4. Preface
5. Table of Cases
6. Table of Statutes
7. List of Abbreviations
8. Executive Summary
Chapters
Chapter 1: Introduction
1.1 Background of the Study
1.2 Objectives of the Study
1.3 Hypothesis
1.4 Scope and Limitations
1.5 Methodology Adopted
1.6 Review of Literature
1.7 Structure of the Project
Chapter 2: Judicial Review in the United Kingdom
2.1 Historical Background
2.2 Constitutional Framework
2.3 Parliamentary Sovereignty and Rule of Law
2.4 Grounds for Judicial Review
2.5 Key Cases and Judicial Developments
2.6 Human Rights Act 1998
2.7 Recent Trends in UK Judicial Review
Chapter 3: Judicial Review in the United States of America
3.1 Historical Evolution
3.2 Constitutional Basis
 9

3.3 Principles and Doctrines

3.4 Key Judicial Precedents
3.5 Limitations on Judicial Review
3.6 Judicial Activism and Restraint
3.7 Contemporary Developments
Chapter 4: Judicial Review in India
4.1 Evolution and Constitutional Context
4.2 Judicial Review under Articles 13, 32, and 226
4.3 The Basic Structure Doctrine
4.4 Role of the Judiciary in Social Transformation
4.5 Landmark Judgments
4.6 Judicial Activism vs. Judicial Overreach
4.7 Recent Trends and Debates
Chapter 5: Comparative Analysis of Judicial Review
5.1 Structural Differences and Similarities
5.2 Constitutional Supremacy vs. Parliamentary Sovereignty
5.3 Impact on Fundamental Rights
5.4 Effectiveness in Ensuring Accountability
5.5 Influence of Political and Legal Culture
5.6 Lessons for Legal Reform
Chapter 6: Conclusion and Recommendations
6.1 Summary of Findings
6.2 Conclusion
6.3 Suggestions and Recommendations
6.4 Scope for Future Research
Chapter 7: Suggestions
Bibliography
 10

CHAPTER 1:

INTRODUCTION

1.1 Background of the Study

Judicial review refers to the power of the judiciary to examine the constitutionality or legality

of legislative enactments and executive orders. It is a fundamental feature of constitutional

democracies, ensuring that no organ of the government acts beyond the limits prescribed by

the constitution. The concept originated in the United States with the landmark case Marbury

v Madison (1803), where Chief Justice John Marshall first articulated the doctrine.1 In the

UK, judicial review has evolved through common law principles and the doctrine of

parliamentary sovereignty, which limits judicial authority over primary legislation.2 In India,

judicial review is enshrined in the Constitution and is an integral part of the Basic Structure

doctrine developed by the Supreme Court.3

Each country‘s version of judicial review reflects its unique historical, political, and

constitutional contexts. While the USA follows a rigid constitution and strong judicial

supremacy, the UK follows the principle of parliamentary sovereignty with limited review,

1
Marbury v Madison 5 US (1 Cranch) 137 (1803); J Marshall, ‗The Origins of Judicial Review‘ (1803).
2
A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959); R. Craig,
Administrative Law (8th edn, Sweet & Maxwell 2016).
3
Constitution of India, art 32; Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 (Basic Structure
doctrine); B.R. Ambedkar, The Framing of Indian Constitution (1949); H.M. Seervai, Constitutional Law
of India (4th edn, Universal Law Publishing 2015); D.D. Basu, Introduction to the Constitution of India
(21st edn, LexisNexis 2020).
 11

and India adopts a middle path with both parliamentary supremacy and constitutional

supremacy.4

This study undertakes a comparative analysis of how judicial review is defined, developed,

and applied in these three jurisdictions, identifying their similarities, differences, and

effectiveness in maintaining the rule of law.

1.2 Objectives of the Study

The primary objectives of this research are:

• To explore the evolution and nature of judicial review in the UK, USA, and India.

• To examine the constitutional and legal frameworks that empower judicial review in

each jurisdiction.

• To analyse the key judicial decisions that shaped the scope of judicial review.

• To compare and contrast the mechanisms and limitations of judicial review in the

three systems.

• To evaluate the role of the judiciary in safeguarding constitutional principles and

fundamental rights.

• To suggest legal reforms or insights that may enhance the functioning of judicial

review in India.

1.3 Hypothesis

The hypothesis of this study is:

4
M. Tushnet, Taking the Constitution Away from the Courts (Princeton UP 1999); Granville Austin, The
Indian Constitution: Cornerstone of a Nation (Oxford UP 1966).
 12

"Despite having different constitutional frameworks, the effectiveness of judicial review in

the UK, USA, and India depends significantly on the judiciary‘s interpretation, institutional

independence, and socio-political context rather than mere textual provisions."

1.4 Scope and Limitations

Scope

• This study focuses on a doctrinal and comparative analysis of judicial review within

three legal systems—UK, USA, and India. The research includes:

• Key constitutional provisions, statutes, and judgments.

• Doctrinal debates like judicial activism, restraint, and the Basic Structure doctrine.

• Recent trends and cases up to 2024.

• Limitations

• The study does not include judicial review practices in non-common law

jurisdictions.

• Limited to publicly available judicial and academic sources.

• Practical application of judicial review in lower courts is not extensively covered.

1.5 Methodology Adopted

• The methodology employed in this research is doctrinal and comparative in nature. It

includes:

• Analysis of constitutional texts of the UK, USA, and India.

• Examination of judicial decisions from apex courts.

• Study of scholarly articles, legal commentaries, and journals.

• Use of comparative legal analysis to highlight distinctions and commonalities.

 13

• Reference to both primary and secondary legal sources.

• Footnoting Style: OSCOLA (Oxford University Standard for the Citation of Legal

Authorities) has been adopted for referencing throughout the project.

1.6 Review of Literature

Several scholars and jurists have analyzed judicial review as a concept and its practical

application across jurisdictions. Key contributions include:

• A.V. Dicey, who emphasized parliamentary sovereignty and the rule of law in the

UK.5

• Justice John Marshall‘s opinions that shaped American judicial review.^1

• Dr. B.R. Ambedkar, who called Article 32 the "heart and soul" of the Indian

Constitution.^3

• H.M. Seervai and D.D. Basu, who elaborated on Indian constitutional law and the

doctrine of judicial review.^3

• Recent works by Mark Tushnet and Upendra Baxi discuss judicial activism and

transnational judicial trends.^5

In the grand orchestra of constitutional governance, judicial review serves as the vigilant

conductor—ensuring that each branch of government plays in harmony with the

constitution‘s fundamental principles. Across nations, its role is not just legal but deeply

symbolic of democratic accountability and the balance of power. Yet, the melody of judicial

5
M. Tushnet, ‗Judicial Activism and Judicial Restraint: Some Comments‘ (2008) 9 International Journal
of Constitutional Law 3; Upendra Baxi, ‗Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible‘ (1985) 29 Journal of Indian Law Institute 494.
 14

review resonates differently in the legal symphonies of the United Kingdom, the United

States, and India—three democracies that share a common legal heritage but diverge in

constitutional frameworks and judicial philosophies.

The United Kingdom, with its unwritten constitution and deep-rooted doctrine of

parliamentary sovereignty, treats judicial review as a tool primarily for administrative control

rather than constitutional invalidation. The United States, the birthplace of formal judicial

review through Marbury v. Madison (1803), positions its judiciary as the guardian of a rigid

written constitution, ensuring that no law or executive act tramples on fundamental liberties.

Meanwhile, India, the world's largest democracy, has embraced a hybrid model—explicitly

constitutional, yet dynamically evolving, where judicial review is not only a means of

enforcing legal limits but also a moral compass guiding the state toward justice, equity, and

inclusiveness.

This study embarks on a comparative exploration of how these three democratic giants

interpret and exercise judicial review. While all three systems aim to uphold the rule of law

and protect individual rights, their approaches differ in scope, authority, and purpose. The

comparative lens allows us to appreciate the flexibility of constitutional design, the cultural

and political underpinnings of judicial power, and the evolving relationship between courts

and society.

As the 21st century ushers in complex challenges—ranging from executive overreach to

digital authoritarianism—the doctrine of judicial review becomes more crucial than ever.

Through this comparative analysis, we aim not only to map doctrinal differences but also to
 15

identify lessons and best practices that may contribute to the strengthening of judicial

accountability, democratic resilience, and constitutional justice across jurisdictions.

 16

CHAPTER 2:

JUDICIAL REVIEW IN THE UNITED KINGDOM

2.1 Historical Background

In the United Kingdom, judicial review developed as a part of the common law system rather

than as a constitutionally enshrined mechanism. Rooted in the rule of law and the principle of

legality, judicial review in the UK evolved significantly through judicial precedents and

statutory interpretation, especially in the post-World War II period.6

2.2 Constitutional Framework

The UK does not have a codified constitution. Instead, it operates on the principle of

parliamentary sovereignty, meaning Parliament can make or unmake any law.7 Courts do not

have the power to strike down primary legislation. However, judicial review exists primarily

to ensure that executive actions comply with the law.

The main sources that guide judicial review include:

• Common law principles

• The Human Rights Act 1998

• The European Convention on Human Rights (ECHR)

6
Paul Craig, Administrative Law (9th edn, OUP 2021) 4.
7
A V Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) 39.
 17

• Judicial precedents and administrative law doctrines8

2.3 Grounds of Judicial Review

UK courts examine executive actions based on three primary grounds, as established in

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ

case):

• Illegality: Acting beyond legal powers

• Irrationality: Wednesbury unreasonableness

• Procedural Impropriety: Failure to follow due process9

• These were later supplemented by proportionality, especially in human rights cases

after the Human Rights Act 1998.10

2.4 Impact of Human Rights Act 1998

The Human Rights Act 1998 significantly expanded the role of UK courts in judicial review.

Courts can now review legislation for compatibility with ECHR rights. While they cannot

strike down primary legislation, they can issue a "declaration of incompatibility" under

Section 4 of the Act.11 This mechanism preserves parliamentary sovereignty while

empowering courts to scrutinize laws.12

8
Mark Elliott and Robert Thomas, Public Law (3rd edn, OUP 2017) 329–335.
9
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL).
10
R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532.
11
Human Rights Act 1998, s 4.
12
Alison L Young, Parliamentary Sovereignty and the Human Rights Act (Hart 2009) 98–102.
 18

2.5 Role of the Judiciary

Judicial review in the UK is primarily directed at controlling executive discretion and

ensuring accountability. Prominent cases such as:

• R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]

2 AC 513

• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

• R (Miller) v The Prime Minister [2019] UKSC 41

have demonstrated how the judiciary interprets the scope of executive power within the

bounds of legality.13

2.6 Recent Developments and Debates

The expansion of judicial review has led to debates about judicial overreach. The UK

government has proposed reforms such as:

• Judicial Review and Courts Act 2022

• Discussions on repealing or reforming the HRA 199814

These raise questions about the future balance between parliamentary sovereignty and

judicial oversight.15

13
R (Miller) v The Prime Minister [2019] UKSC 41; R (Miller) v Secretary of State for Exiting the
European Union [2017] UKSC 5; R v Secretary of State for the Home Department, ex parte Fire Brigades
Union [1995] 2 AC 513.
14
Ministry of Justice, Judicial Review Reform Consultation Report (2021); Judicial Review and Courts Act
2022.
15
Mark Elliott, ‗The Government‘s Constitutional Reform Agenda‘ [2022] PL 1.
 19

In the legal landscape of the United Kingdom, judicial review functions like a lighthouse—

guiding the machinery of government toward legality without directly redrawing the

constitutional map. Unlike the United States or India, where judicial review serves as a tool

to test legislation against a supreme written constitution, the United Kingdom operates under

the doctrine of Parliamentary Sovereignty, which posits that no court may strike down an Act

of Parliament. Despite this, judicial review in the UK has evolved into a powerful check on

executive authority and administrative decision-making.

The innovation in the UK system lies in its flexibility and restraint. It does not question what

Parliament enacts, but rigorously evaluates how public authorities exercise their powers. This

form of review is not about invalidating laws but about upholding the rule of law—ensuring

that administrative actions are legal, rational, and procedurally fair. Through landmark cases

such as Council of Civil Service Unions v. Minister for the Civil Service (1985)—famously

known as the GCHQ case—British courts established the foundational grounds of judicial

review: illegality, irrationality, and procedural impropriety.

Post the Human Rights Act 1998, a new dimension was added to judicial review in the UK.

Although courts cannot nullify legislation that contravenes the European Convention on

Human Rights (ECHR), they can issue Declarations of Incompatibility, indirectly nudging

Parliament to consider reforms while preserving constitutional balance. This unique

mechanism reflects a dialogic model of constitutionalism, where courts and Parliament

engage in conversation rather than confrontation.

Further innovation comes from the judiciary‘s adaptive engagement with evolving

democratic norms. Courts have increasingly scrutinized matters once deemed non-
 20

justiciable—such as national security, Brexit-related prerogatives (R (Miller) v. The Prime

Minister, 2019), and ministerial accountability—signaling a quiet yet powerful evolution in

judicial review. It demonstrates that even in a system without a written constitution, the

judiciary can become a robust guardian of legality and democratic integrity.

Thus, the UK model of judicial review reveals a sophisticated interplay between

constitutional traditions and modern-day accountability. While it lacks the dramatic power of

constitutional nullification seen in the U.S. or India, it excels in precision, subtlety, and

institutional dialogue—highlighting that judicial strength need not always lie in confrontation

but often in constitutionally conscious restraint.

 21

CHAPTER 3:

JUDICIAL REVIEW IN THE UNITED STATES OF AMERICA

3.1 Historical Development

The United States is the birthplace of modern judicial review. The doctrine was firmly

established in Marbury v Madison (1803), where Chief Justice John Marshall asserted the

Supreme Court‘s authority to nullify laws that violate the Constitution.16 This case laid the

foundation for judicial supremacy in interpreting constitutional provisions.17

3.2 Constitutional Framework

The U.S. Constitution is a written, rigid, and supreme document. Article III vests judicial

power in the federal courts, and the Supremacy Clause in Article VI establishes the

Constitution as the highest law of the land.³ 18Judicial review is not explicitly mentioned but

is implied through judicial interpretation.19

3.3 Scope of Judicial Review

U.S. courts, particularly the Supreme Court, exercise the power to:

• Strike down federal and state laws that are unconstitutional

• Review executive actions for constitutional compliance

16
Marbury v Madison, 5 US (1 Cranch) 137 (1803).
17
Erwin Chemerinsky, Constitutional Law: Principles and Policies (6th edn, Wolters Kluwer 2022) 27.
18
US Constitution, arts III and VI.
19
Alexander M Bickel, The Least Dangerous Branch (2nd edn, Yale University Press 1986) 1–6.
 22

• Interpret the Bill of Rights and other constitutional amendments20

Unlike the UK, the U.S. judiciary has broad powers to invalidate legislation and executive

actions.21

3.4 Landmark Judgments

Several Supreme Court decisions have shaped the doctrine:

• Marbury v Madison (1803): Established judicial review22

• Brown v Board of Education (1954): Declared racial segregation unconstitutional23

• Roe v Wade (1973): Recognized the right to privacy and abortion (overturned in

2022)24

• Obergefell v Hodges (2015): Legalized same-sex marriage25

• Dobbs v Jackson Women‘s Health Organization (2022): Overturned Roe, sparking

debates on judicial activism26

20
Richard H Fallon Jr, The Dynamic Constitution: An Introduction to American Constitutional Law and
Practice (2nd edn, CUP 2013) 35–40.
21
Laurence Tribe, American Constitutional Law (3rd edn, Foundation Press 2000) 21–23.
22
Marbury v Madison (n 1).
23
Brown v Board of Education, 347 US 483 (1954).
24
Roe v Wade, 410 US 113 (1973); overturned in Dobbs v Jackson Women's Health Organization, 597 US
___ (2022).
25
Obergefell v Hodges, 576 US 644 (2015).
26
Dobbs v Jackson Women’s Health Organization (n 9).
 23

3.5 Judicial Philosophy and Activism

The U.S. judiciary has witnessed shifts between judicial activism and judicial restraint.

Judges like Earl Warren favored an expansive interpretation of rights, while others like

Antonin Scalia advocated originalism and textualism.27

3.6 Criticism and Debates

Judicial review in the U.S. has been criticized for:

• Undermining democratic choices

• Judicial overreach and policymaking

• Lack of accountability of unelected judges28

• Despite this, it remains a vital check on legislative and executive power.29

3.7 Conclusion

Judicial review in the United States is a cornerstone of constitutional governance. Its robust

implementation has protected civil liberties and ensured constitutional supremacy. However,

its evolving jurisprudence continues to ignite debates on the limits of judicial power and its

role in a democratic society.30

27
Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press
1997); compare with Chief Justice Earl Warren‘s legacy in Brown (n 8).
28
Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and
Shaped the Meaning of the Constitution (FSG 2009) 10–15.
29
Chemerinsky (n 2) 44–46.
30
Fallon (n 5) 52–55.
 24

CHAPTER 4:

JUDICIAL REVIEW IN INDIA

4.1 Historical Background

The concept of judicial review in India can be traced back to colonial jurisprudence,

particularly through the Government of India Acts of 1919 and 1935, which laid the

groundwork for a constitutional framework.31 However, the true foundation was laid with

the adoption of the Indian Constitution in 1950.32 Inspired by both American and British

systems, the Indian Constitution enshrines judicial review as a mechanism for ensuring

constitutional supremacy and safeguarding fundamental rights.33

4.2 Constitutional Framework

Judicial review in India is expressly provided under the Constitution, which grants the higher

judiciary the power to examine the constitutionality of laws and executive actions. Key

provisions include:

• Article 13: Declares that any law inconsistent with fundamental rights shall be void.34

• Article 32: Empowers the Supreme Court to enforce fundamental rights.35

• Article 226: Grants High Courts the power to issue writs for enforcement of rights.36

31
Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1999) 115.
32
MP Jain, Indian Constitutional Law (8th edn, LexisNexis 2018) 110.
33
DD Basu, Introduction to the Constitution of India (24th edn, LexisNexis 2020) 107.
34
Constitution of India 1950, art 13.
35
Constitution of India 1950, art 32.
 25

• Articles 131, 136, 141, and 142: Further empower the Supreme Court‘s jurisdiction

and authority.37

4.3 Judicial Pronouncements Shaping the Doctrine

Several landmark judgments have shaped the doctrine of judicial review in India:

• A.K. Gopalan v State of Madras (1950): Emphasized procedural limitations.38

• Kesavananda Bharati v State of Kerala (1973): Introduced the Basic Structure

Doctrine, holding that certain features of the Constitution are inviolable.39

• Minerva Mills v Union of India (1980): Reaffirmed the primacy of the basic structure

over parliamentary amendments.40

• Indira Nehru Gandhi v Raj Narain (1975): Struck down a constitutional amendment

violating the principle of free and fair elections.41

• I.R. Coelho v State of Tamil Nadu (2007): Extended judicial review to laws placed

under the Ninth Schedule if they damage the basic structure.42

4.4 Basic Structure Doctrine

Perhaps the most significant contribution of Indian jurisprudence is the Basic Structure

Doctrine, evolved in Kesavananda Bharati‘s case. According to this doctrine, while

36
Constitution of India 1950, art 226.
37
Constitution of India 1950, arts 131, 136, 141, 142.
38
A.K. Gopalan v State of Madras AIR 1950 SC 27.
39
Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.
40
Minerva Mills v Union of India AIR 1980 SC 1789.
41
Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299.
42
I.R. Coelho v State of Tamil Nadu AIR 2007 SC 861.
 26

Parliament has wide powers to amend the Constitution, it cannot alter its basic structure,

which includes:

• Supremacy of the Constitution

• Rule of law

• Judicial review

• Separation of powers

• Federalism

• Fundamental rights43

This doctrine serves as a safeguard against arbitrary constitutional amendments.44

4.5 Judicial Activism and Restraint

India has witnessed an evolution from judicial restraint to judicial activism, especially in the

post-Emergency era.45 The courts have actively interpreted laws to uphold the spirit of the

Constitution and introduced innovations like:

• Public Interest Litigation (PIL)

• Expansive interpretation of Article 21 (Right to Life)

• Directions for environmental protection, gender justice, and good governance46

43
Jain (n 2) 134–138.
44
Basu (n 3) 160.
45
S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (Oxford University
Press 2002) 78–80.
46
Pratap Bhanu Mehta, ‗The Rise of Judicial Sovereignty‘ in Niraja Gopal Jayal and Pratap Bhanu Mehta
(eds), The Oxford Companion to Politics in India (Oxford University Press 2010) 82–83.
 27

While praised for protecting rights, judicial activism has also been criticized as judicial

overreach.47

4.6 Role of Judiciary in Governance

The Indian judiciary, particularly the Supreme Court, has emerged as a key player in

governance. It has played a pivotal role in:

• Checking executive excesses

• Protecting fundamental rights

• Interpreting constitutional provisions

• Balancing the relationship between different organs of the state48

The judiciary‘s independence and power of judicial review make it the guardian of the

Constitution.49

4.7 Recent Trends and Challenges

• Increased judicial scrutiny of legislative and executive actions.

• Ongoing debates on the judicial appointment process (Collegium vs NJAC).50

• Concerns over pendency, delays, and transparency.

47
Rajeev Dhavan, ‗Judicial Governance: The Indian Experience‘ (2002) 9 South Asia Journal of Human
Rights 22.
48
Upendra Baxi, ‗The Avatars of Indian Judicial Activism: Explorations in the Geographies of (In)justice‘
in S.K. Verma and Kusum (eds), Fifty Years of the Supreme Court of India (Oxford University Press 2000)
156.
49
Jain (n 2) 195.
50
Supreme Court Advocates-on-Record Association v Union of India (2016) 5 SCC 1 (NJAC case).
 28

• Judicial interventions in policy matters such as reservations, farm laws, and electoral

bonds.51

4.8 Conclusion

Judicial review in India is a vital constitutional mechanism for upholding democracy and the

rule of law.52 The Indian judiciary has developed a robust system of checks and balances

through the Basic Structure Doctrine, PILs, and proactive interpretation of rights. Despite

criticisms and challenges, judicial review continues to reinforce constitutionalism and

remains an essential safeguard for individual liberties and institutional integrity.53

51
Association for Democratic Reforms v Union of India (2024) SC pending judgment on electoral bonds.
52
Basu (n 3) 207.
53
Austin (n 1) 230.
 29

CHAPTER 5:

COMPARATIVE ANALYSIS OF JUDICIAL REVIEW IN INDIA AND

THE UNITED STATES

5.1 Introduction

Judicial review is a fundamental feature of constitutional governance, ensuring that the

actions of the legislature and executive conform to the Constitution. Both India and the

United States have embraced judicial review as a means of preserving constitutional

supremacy. However, the origin, structure, and operational dynamics of judicial review in the

two countries reflect their distinct constitutional philosophies, legal traditions, and socio-

political environments.

5.2 Historical Origins

United States: Judicial review in the U.S. emerged from judicial interpretation rather than

constitutional text. The landmark case Marbury v. Madison (1803) established the doctrine,

asserting the Supreme Court‘s authority to declare laws unconstitutional. This principle was

grounded in the concept of a written Constitution as the supreme law of the land.54

India: In contrast, judicial review in India has explicit constitutional backing. Influenced by

both British parliamentary traditions and American constitutionalism, the framers of the

54
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). See also: National Archives, 'Marbury v. Madison
(1803)' https://www.archives.gov/milestone-documents/marbury-v-madison.
 30

Indian Constitution embedded judicial review as a textual right. Articles 13, 32, and 226

provide a clear framework for its exercise.55

5.3 Constitutional Structure and Basis

United States:

• Judicial review is not explicitly mentioned in the U.S. Constitution.

• Based on judicial interpretation, particularly Marbury v. Madison.56

• Operates under a federal system with a strong emphasis on separation of powers.

• India:

• Judicial review is explicitly provided in the Constitution.

• Articles 13, 32, and 226 form the constitutional bedrock.

• Reflects a quasi-federal structure with a blend of separation of powers and

parliamentary sovereignty.

5.4 Scope and Nature of Judicial Review

United States:

• Judicial review extends to both federal and state laws.

• Emphasis is placed on the principle of stare decisis (precedent).

• Judicial review is largely reactive—courts act upon cases brought before them.

55
Constitution of India, Articles 13, 32, and 226.
56
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. See also: Frontline, '1973: Kesavananda
Bharati case' https://frontline.thehindu.com/social-issues/social-justice/india-at-75-epochal-moments-1973-
kesavananda-bharati-case/article65725137.ece.
 31

India:

• Broader scope, encompassing legislative, executive, and sometimes administrative

actions.

• More proactive through mechanisms like Public Interest Litigation (PIL).

• Review includes constitutional amendments (limited by the Basic Structure

Doctrine).³

5.5 Judicial Doctrines and Interpretative Approaches

United States:

• Relies heavily on doctrines like originalism, textualism, and living Constitution

theory.

• The U.S. Supreme Court has evolved doctrines like strict scrutiny and rational basis

review for rights-related issues.

India:

• Indian courts employ purposive interpretation, emphasizing the spirit of the

Constitution.

• Innovations like the Basic Structure Doctrine and expansive interpretation of Article

21 have enhanced judicial review.

5.6 Key Judicial Pronouncements

United States:
 32

• Marbury v. Madison (1803): Established judicial review.

• Brown v. Board of Education (1954): Ended racial segregation in schools.

• Roe v. Wade (1973): Recognized abortion rights (later overruled in 2022).

• Obergefell v. Hodges (2015): Legalized same-sex marriage nationwide.

India:

• Kesavananda Bharati v. State of Kerala (1973): Origin of the Basic Structure

Doctrine.

• Minerva Mills v. Union of India (1980): Reaffirmed limits on constitutional

amendments.

• Maneka Gandhi v. Union of India (1978): Broadened the interpretation of Article 21.

• I.R. Coelho v. State of Tamil Nadu (2007): Extended review to Ninth Schedule laws.

5.7 Judicial Review and Democratic Governance

United States:

• Judiciary plays a balancing role, ensuring checks and balances among branches.

• Strong tradition of judicial independence with life tenure for federal judges.

India:

• Judiciary is viewed as the protector of fundamental rights and constitutional

supremacy.

• Plays an active role in social justice and governance through PILs and suo motu

actions.
 33

• Judicial independence ensured through constitutional provisions and conventions,

though recent debates over the collegium system persist.

5.8 Challenges and Criticism

United States:

• Accusations of judicial activism or judicial supremacy.

• Politicization of judicial appointments, especially to the Supreme Court.

• Debates over originalist vs. living Constitution interpretations.

India:

• Concerns over judicial overreach and encroachment into executive and legislative

domains.

• Pendency and delays in delivering justice.

• Lack of transparency in judicial appointments (e.g., collegium system vs. NJAC

debate).

5.9 Comparative Summary

Feature United States India

Constitutional Basis Not explicit (evolved via case Explicit (Articles 13, 32,
law) 226, etc.)
Landmark Case Establishing Marbury v. Madison (1803) Kesavananda Bharati (1973)
Doctrine
Review of Constitutional No Yes (subject to Basic
Amendments Structure)
Judicial Appointment Presidential nomination, Collegium system (recently
System Senate approval contested)
 34

Activism vs. Restraint Generally more restrained Increasing activism,

historically especially via PILs
Role in Governance Balancing power among Proactive governance and
branches social reform

5.10 Conclusion

While both India and the United States recognize judicial review as a cornerstone of

constitutional governance, their approaches reflect distinct constitutional traditions and

societal needs. The U.S. model, rooted in judicial precedent, emphasizes federalism and

separation of powers. The Indian model, constitutionally embedded, is more expansive and

activist, often responding to socio-economic challenges through judicial innovation.

Despite their differences, both systems underscore the vital role of an independent judiciary

in upholding the Constitution, safeguarding rights, and ensuring democratic accountability.

 35

CHAPTER 6:

CONCLUSION AND RECOMMENDATIONS

6.1 Conclusion

The doctrine of judicial review stands as a cornerstone of constitutional democracy in both

India and the United States, albeit with nuanced distinctions rooted in their respective legal

and political traditions. In the United States, judicial review emerged from judicial

interpretation and is a product of precedent set forth in Marbury v. Madison (1803).57 It

functions within a framework of strict separation of powers, focusing on ensuring

constitutional fidelity primarily through precedent-based adjudication.58

India, on the other hand, incorporated judicial review explicitly within its constitutional

text.59 Influenced by both the British tradition of parliamentary governance and the American

commitment to constitutional supremacy, Indian judicial review has evolved into a dynamic

and expansive tool.60 The judiciary in India, particularly the Supreme Court, has played an

activist role in addressing socio-economic challenges, safeguarding fundamental rights, and

enforcing constitutional limits on legislative and executive power.61

57
Marbury v. Madison, 5 US (1 Cranch) 137 (1803).
58
Erwin Chemerinsky, Constitutional Law: Principles and Policies (5th edn, Wolters Kluwer 2015) 4–7.
59
Constitution of India, arts 13, 32, 226.
60
HM Seervai, Constitutional Law of India (4th edn, Universal Law Publishing 2011) vol 1, 262–65.
61
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
 36

While both systems recognize the critical importance of judicial review, India's model

emphasizes constitutional morality and public interest, 62 whereas the U.S. model remains

rooted in institutional restraint and adherence to precedent.63 Each system reflects its own

historical experiences and democratic evolution, contributing to the broader global

understanding of constitutional governance.64

6.2 Recommendations

Based on the comparative analysis, the following recommendations are proposed to enhance

the effectiveness, transparency, and accountability of judicial review mechanisms:

1. Ensure Transparency in Judicial Appointments

India: Reform the collegium system to improve transparency and accountability. An

independent judicial commission may balance executive and judicial inputs.65

United States: Curb excessive politicization in judicial appointments by reinforcing merit-

based evaluation and promoting bipartisan oversight.66

2. Limit Judicial Overreach While Preserving Activism

Encourage a balanced approach where courts exercise restraint in policy matters but remain

vigilant in safeguarding constitutional rights.67

62
Baxi Upendra, The Indian Supreme Court and Politics (Eastern Book Company 1980) 88–90.
63
Laurence H Tribe, American Constitutional Law (2nd edn, Foundation Press 1988) 54–60.
64
Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press 2008) 98.
65
Law Commission of India, Report No. 121: A New Forum for Judicial Appointments (1987).
66
Stephen B Burbank, 'The Architecture of Judicial Independence' (1997) 72 S Cal L Rev 315.
67
Aharon Barak, The Judge in a Democracy (Princeton University Press 2006) 53–60.
 37

3. Strengthen Judicial Infrastructure

India: Address pendency by increasing judicial strength, digitizing court processes, and

implementing time-bound case management systems.68

4. Promote Legal Awareness and Constitutional Literacy

Empower citizens to understand and utilize judicial review by embedding constitutional

education in school and university curricula.69

5. Codify Doctrines and Precedents

Both jurisdictions should work toward clearer codification of key judicial doctrines to

enhance predictability, reduce arbitrariness, and support legal scholarship.70

6. Encourage International Judicial Dialogue

Comparative constitutionalism and transnational judicial dialogue can enrich jurisprudence.

Courts may consider persuasive precedents from other jurisdictions to evolve more robust

frameworks.71

7. Review Constitutional Amendments Mechanism

India: Maintain the Basic Structure Doctrine but ensure parliamentary debates around

amendments are more inclusive and deliberative.72

68
Department of Justice (India), eCourts Mission Mode Project, Ministry of Law and Justice
https://ecourts.gov.in accessed 30 May 2025.
69
National Legal Services Authority (India), Legal Literacy and Legal Awareness Programmes
https://nalsa.gov.in accessed 30 May 2025.
70
Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure
Doctrine (OUP 2009).
71
Sujit Choudhry (ed), The Migration of Constitutional Ideas (CUP 2006).
 38

• Suggestions for Enhancing Judicial Review

• Promote Judicial Accountability

• Establish clear standards and mechanisms to hold judges accountable without

compromising judicial independence, ensuring transparency in decision-making.73

Enhance Access to Justice

Simplify procedures for filing constitutional petitions and public interest litigations to make

judicial review more accessible to marginalized and underprivileged groups.74

Strengthen Judicial Training

Provide continuous education and training for judges on constitutional law developments and

comparative jurisprudence to keep judicial review dynamic and informed.75

Ensure Balanced Judicial Activism

Encourage courts to balance activism with restraint, intervening decisively in rights

violations but avoiding encroachment into legislative or executive domains.76

Digitize Court Processes

72
Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (OUP 1999)
271.
73
Transparency International, Judicial Accountability in India (TI 2020).
74
S Muralidhar, ‗Access to Justice: A Constitutional Perspective‘ (2009) 5 NJA Law Journal 1.
75
National Judicial Academy (India), Judicial Education Programmes https://nja.gov.in accessed 30 May
2025.
76
Justice YV Chandrachud, ‗Judicial Activism and Constitutional Interpretation in India‘ (1985) 5 SCC J 1.
 39

Use technology to reduce case backlogs and expedite constitutional review cases, improving

efficiency and transparency.77

Encourage Legislative Dialogue

Foster dialogue between judiciary and legislature to harmonize laws with constitutional

mandates, reducing unnecessary judicial invalidation of laws.78

Expand Public Awareness

Increase public education campaigns on constitutional rights and judicial review to empower

citizens to invoke constitutional remedies.79

Improve Judicial Appointment Transparency

Reform judicial appointment processes to be more transparent and merit-based, minimizing

political interference.

Codify Basic Doctrines

Develop comprehensive guidelines or codified principles for judicial review to reduce

inconsistency and improve predictability.

Facilitate International Judicial Cooperation

77
Vidhi Centre for Legal Policy, Backlogs in Indian Judiciary: Causes and Solutions (2021).
78
Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis (Hart Publishing 2017) 205.
79
Bar Council of India, Public Legal Education Initiatives https://barcouncilofindia.org accessed 30 May
2025.
 40

Promote exchanges and dialogue between courts internationally to learn best practices and

adapt innovative approaches to judicial review.

 41

CHAPTER 7:

SUGGESTIONS

1. Define Key Concepts Clearly

Begin with a clear explanation of what * judicial review* entails in each jurisdiction,

highlighting its origin, scope, and constitutional basis.

2. Historical Evolution

Trace the evolution of judicial review:

• USA: Landmark case * Marbury v. Madison (1803).

• UK: Gradual development through common law and Human Rights Act 1998.

• India: Constitutional embedding under Articles 13, 32, and 226.

3. Legal Foundation & Constitutional Status

Compare the constitutional provisions:

• India: Explicit in the Constitution.

• USA: Judicial interpretation.

• UK: Based on Parliamentary sovereignty, evolved via statutes.

4. Role of the Judiciary

Analyze the judiciary‘s role in each system:

• USA: Strict separation of powers.

• UK: Parliamentary supremacy with limited judicial checks.

 42

• India: Active judiciary with doctrines like basic structure .

5. Scope and Limitations

• Discuss how far courts can go in reviewing executive and legislative actions in each

country. Emphasize differences in judicial activism vs. restraint.

6. Key Doctrines Used

Highlight comparative use of doctrines:

• Proportionality, reasonableness (UK)

• Due Process, strict scrutiny (USA)

• Basic Structure Doctrine, public interest litigation (India)

7. Influence of International Jurisprudence

• Examine how transnational judicial dialogues influence decisions, especially in India

and the UK, referencing international human rights norms.

8. Landmark Case Analysis

Include major cases:

• UK: R (Miller) v. The Prime Minister

• USA: Brown v. Board of Education , Roe v. Wade

• India: Kesavananda Bharati v. State of Kerala , Maneka Gandhi v. Union of India

9. Comparative Strengths & Weaknesses

Provide a balanced critique:

 43

• USA: Strong precedent but political appointments.

• UK: Flexible but lacks constitutional supremacy.

• India: Expansive review but risks judicial overreach.

10. Future Challenges & Reforms

Conclude with suggestions on improving judicial review, like:

• Enhancing judicial accountability

• Reforming appointment systems

• Promoting public legal education

 44

BIBLIOGRAPHY

Books

1. Basu, Durga Das. Introduction to the Constitution of India. LexisNexis, 2021.

2. Jain, M.P. Indian Constitutional Law. LexisNexis, 2018.

3. Dicey, A.V. Introduction to the Study of the Law of the Constitution. Macmillan,

1885.

4. Vile, M.J.C. Constitutionalism and the Separation of Powers. Liberty Fund, 1998.

5. Stone, Geoffrey R. et al. Constitutional Law. Wolters Kluwer, 2019.

6. Bradley, A.W., and Ewing, K.D. Constitutional and Administrative Law. Pearson

Education, 2018.

Case Law

1. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) – USA

2. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 – India

3. Maneka Gandhi v. Union of India, AIR 1978 SC 597 – India

4. R (Miller) v. The Prime Minister [2019] UKSC 41 – UK

5. Brown v. Board of Education, 347 U.S. 483 (1954) – USA

Journal Articles

1. Sathe, S.P. ―Judicial Activism: The Indian Experience.‖ Washington University

Journal of Law & Policy, vol. 6, 2001, pp. 29–74.

 45

2. Choudhry, Sujit. ―Judicial Review in India and the United States: Comparative

Reflections.‖ International Journal of Constitutional Law, vol. 3, no. 1, 2005.

3. Allan, T.R.S. ―Constitutional Dialogue and the Justification of Judicial Review.‖

Oxford Journal of Legal Studies, vol. 23, no. 4, 2003.

Online Sources

1. Constitution of India – https://legislative.gov.in/constitution-of-india

2. U.S. Constitution – https://www.archives.gov/founding-docs/constitution

3. UK Parliament – https://www.parliament.uk/about/how/laws/acts/

4. Supreme Court of India – https://main.sci.gov.in/

5. U.S. Supreme Court – https://www.supremecourt.gov/

6. BAILII (British and Irish Legal Information Institute) – https://www.bailii.org/

Reports and Commentaries

1. Law Commission of India, Reform of the Judicial System, Report No. 230, 2009.

2. UK Ministry of Justice, Judicial Review: Proposals for Reform, 2012.

3. American Bar Association, Understanding Judicial Independence and Accountability,

2016