A Comparative Analysis of Judicial Review in Parliamentary and Presidential Systems: USA, UK and India

This article was originally written as an academic paper and is republished here as a knowledge-sharing resource. It has been lightly formatted; statutory references reflect the law as it stood at the time of writing.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."

• Chief Justice John Marshall

Introduction

One of the most important features of the judiciary is the power of judicial review. The extent of judicial review in the courts throughout the world clearly suggests that this power is far from in decline and has, in fact, become a key dimension enshrined in the independent judiciary of every nation. The task of interpreting the constitution is a highly creative judicial function. A democratic society lives and swears by certain values – individual liberty, human dignity, rule of law, constitutionalism, limited government, and it is the task of the judiciary to so interpret the constitution and the law as to constantly inculcate these values on which democracy thrives.

The original idea of judicial review can be seen in work of Solon, who in the 6th century B.C., reformed the Athenian Constitution by substituting oligarchy for monarchy, making fitness for public office a matter of wealth, rather than birth. Demosthenes in his writings explained that, “The Solonian Constitution provided elaborate checks against hasty legislation.... If the new law was approved by the court, it was still liable to indictment for a breach of the constitution, especially if the proposers had not complied with all the legal formalities.” Solon stressed that by the adoption of bad law the people are deprived of their right and the benefits of the whole constitution.

The focus of this research paper is limited to USA which follows presidential system, UK - a parliamentary system country & India which a blend of both the systems. Under the first heading a brief view on the characteristics of presidential and parliamentary system is laid out, then under the second heading origin & development of judicial review is examined at length. Before concluding this paper, I have also tried to explore the propensity of Indian courts to exercise the power of judicial review and how this power has facilitated in fortifying our parliamentary form of government.

Characteristics Of Presidential System

The presidential system has as its apex an independent chief executive who has the dual task of executing and initiating policies. He is checked, assisted and supervised by an independent legislature. The United States is an ideal example of the presidential system. The other countries, which follow different variants of the presidential system, are Costa Rica, France, The Philippines, Uruguay and Venezuela.

Normally in Presidential System, the chief executive is chosen for a fixed term in a direct national election. He can be removed from office only in very exceptional circumstances with extraordinary legislature or judicial procedure. The president wields enormous powers and enjoys important privileges. He has the power to veto over legislative bills and also enjoys important responsibilities of initiating budgetary legislation, foreign treaties and other crucial policies. He enjoys emergency and war powers. He appoints major executive officials who hold their offices at his will. With a concern for limiting the abuse of power in such systems where the president enjoys considerable power, as exemplified by the well-known statement that except for a few dictators, the US President is the most powerful elected head, there are special constitutional provisions prohibiting presidential re-election. In the US the President can serve only two terms whereas in Costa Rica and Venezuela the Presidents are prohibited to serve two terms in immediate succession.

Characteristics Of Parliamentary System

The parliamentary system is a system of democratic governance of a state in which the executive branch acquires its legitimacy from legislature and is responsible to it. This means complex interconnectedness between executive and legislative branches. An important factor of the parliamentary system is that the head of a state is different from the head of the government. There are of course exceptions such as the U.K., where the monarch is only the ceremonial head of the state, while the official head of the government is a member of legislature. In parliamentary system the election of the head of a state is not dependent on the government that is currently ruling. The powers of the head of the state (President) are relatively limited. In fact, in the Parliamentary System, the President has mainly a ceremonial function and also the power to appoint the Prime Minister and other ministers.

Parliamentary System, can broadly be classified into Majoritarian Parliamentary System (Australia, Canada, India, Ireland, Jamaica, Japan, New Zealand, Sri Lanka, United Kingdom and Germany) and the Representational Parliamentary System found predominantly in Continental Europe (Austria, Belgium, Denmark, Finland, Italy, Netherlands, Norway, Sweden and Turkey). In the parliamentary system the individual chief executive is the leader of the majority party in the legislature and is accountable to the national legislature. Though the Prime Ministership is the most important office yet there is collective responsibility of the Cabinet. The Prime Minister continues to be in office as long as his party remains the majority party in the legislature. The details vary widely from country to country but the most important common point in all parliamentary democracies is the dependence of the Prime Minister and the Cabinet on legislature majority for their survival.

A. V. Dicey was of the view that “the sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions." Further, he went on to describe the doctrine classically as: “The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament... has, under the English constitution, the right to make or unmake any law or whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament."

India opted for the Westminster model of majoritarian parliamentary system after Independence. This was not an unexpected development as the Government of India Act,1935 provided the necessary grounding for the practice of the British model in India. The acceptance of the liberal democratic framework was expected in India, as almost no other nation gaining independence in the aftermath of the Second World War was ‘institutionally as well prepared as India for self - government’. This favourable situation was created by the existence of two vital institutions: a well organised political party in the form of the Indian National Congress and an experienced civil service.

Differences in Parliamentary and Presidential Systems are the election of the chief executive and the debate styles. In Parliament Systems, the chief executive is not chosen by the people but by the legislature, whereas on the contrary, Presidential Systems are less disciplined and legislators are free to vote their conscious with fewer repercussions from their party. Debate styles also differ between the two systems. In Presidential System legislators make use of a filibuster, or the right to prolong speeches to delay legislative action whereas in Parliamentary Systems will call for cloture or an end to debate so voting can begin.

Judicial Review – Origin & Development

In recent years, we have seen an expansion of judicial power around the world and the spread of the judicialization of politics in many democracies and one of the key constituent of judicial power is ‘judicial review’. It is the power of the Court to examine the constitutionality of the Acts passed by the Parliament or State Legislatures or Executive Orders of the Centre or State Government. If such Act or Order is found to be violative of the provisions of the Constitution then the Court may have declared such Act or Order as unconstitutional or ultra-vires of the constitution and enforceable by the government. Judicial function stems from a feeling that a system based on a written constitution can hardly be effective in practice without an authoritative, independent and impartial arbiter of the constitutional issues and also that it is necessary to restrain governmental organs from exercising powers which may not be sanctioned by the constitution. Judicial Review has two prime functions: (1) Legitimizing Governmental action; (2) to protect the constitution against any undue encroachments by the Government. Thus, as Ginsburg rightly said that judicial review has become an important part of Constitutional development in new democracies around the world.

The basis for judicial review can be found in the writings of Alexander Hamilton, in 1789, in his ‘The Federalist paper’. He wrote, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact and must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning and meaning of an act passed by the legislature.” He further said that if there was any conflict between the two, that is between the constitution and the law, the judges should prefer the constitution as it is supreme. This became the basis of judicial review.

While the historical origin of judicial review in common wealth countries (like Canada & Australia) is traceable to the colonial era. The colonial legislatures were regarded as subordinate legislature vis-à-vis the British Parliament and they had to function within the parameters of the statues enacted by the British Parliament. The colonial law was, therefore, subject to judicial review, and this process continued long after the colonial ripened into self-governing dominions. The doctrine of judicial review was thus ingrained into the legal fabric of these countries and therefore, no need was felt to include a specific constitutional provision in the basic law of these countries.

While at the same time this power of judicial review in a way undermines the parliamentary sovereignty, and impose the will of an unelected group of individuals and protects them from the discrimination of the government. Alexander Bickel coined the term “counter majoritarian difficulty” to illuminate the conflict between democratically elected institutions that engage in promoting the will of the majority and unelected institutions that have the power to subvert the will of the majority in the interest of minorities. The underlying premise of this concern is that democracy is being threatened when judicial institutions engage in resolving questions of politics rather than adjudicating legal issue. The perception is that decisions by the judicial institutions that overturn acts of the parliament, subjugates the legitimacy of the democratic process. Government by majority rule is a basic tenet of democracy and the utilization of judicial review to undermine this tenet is a movement away from democratic ideals of the sovereignty of majority will. Thomas Ginsburg argues that Contrary to the belief of many legal scholars he arguments, the growth of the power of judicial review may advance democracy. He also suggests that even though judicial review may be counter majoritarian, it does not necessarily follow that it is counter democratic. Whereas, Ackerman argues that Presidential systems encourage Judicial Review because it splits the political power between executive and legislative branch.

Development Of Judicial Review In U.S.A

The doctrine of judicial review is one of the invaluable contribution of the U.S.A. to the political theory. Its origin has been the result of a judicial decision and its continuance has been possible due to some conventions. The concept of judicial review was developed & highlighted by Chief Justice Marshall of the American Supreme Court in the famous Marbury v. Madison case. In this case CJ Marshall laid down that the judiciary has the power to examine the laws made by the legislature. It was also declared that if any such law is found to be in violation of the constitution, then such a law would be declared by the court as ultra-vires of the constitution. While doing so the Supreme Court referred to Article VI, Section 2 of the Constitution.

US judicial system is very different from that of the India, U.S.A. has a dual system of courts – a federal judiciary with the Supreme Court at the top along with a separate and parallel judicial system in each State. According to Justice Douglas – “The dual system is in many respects cumbersome, expensive and productive of delays in the administration of justice” and that “it has presented difficulties and perplexities that the other federal system have not experienced”. Further unlike India in USA the President appoints the Supreme Court Judges with the consent of the Senate.

The US Constitution is the supreme law of the land. The Supreme Court has the power to interpret it and preserve its supremacy by preventing its violations by the Congress and the President. Using the power of Judicial Review, the Supreme Court of USA can reject, abrogate or declare any law ultra vires which is made by Congress or states. However, under the US Constitution, Judicial Review as the power of the court is nowhere mentioned. The power of Judicial Review was used for the first time by the U.S. Supreme Court in Hilton v. Virginia (1796). In 1789 the Congress of the United States passed the Judiciary Act, which gave federal courts the power of judicial review over acts of state government. Later in 1803, the power of judicial review was used for the first time by the U.S. Supreme Court to declare an act of Congress as unconstitutional. Acting under the doctrine of Implied Powers, the Supreme Court in its judgement in Marbury v. Madison case, admitted its existence and used it. In this case, Chief Justice John Marshall explained and justified the exercise of judicial review to strike down an unconstitutional act of Congress or states. While doing so the Supreme Court referred to Article VI, Section 2 of the Constitution which reads, “This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” This Article VI is interpreted to mean that the judges have the power and duty to uphold the supremacy of the Constitution by not allowing any federal or state laws to violate its provisions. While giving interpretation to the Judiciary Act, 1789 CJ Marshall further observed that “a written Constitution is superior to all other acts of government made under it; and it is the sworn duty of federal judges to follow the constitution and give effect only to constitutional law and determine which law prevails where there is conflict. If a Congressional law conflicted with the Constitutional law, the court was bound to uphold the Constitution as the highest law of land.”, “Courts are to respect the Constitution and the Constitution is superior to any ordinary Act of legislature.” After this historic judgement, the Supreme Court of USA has been regularly using this power. However, the Court has always refused to apply judicial review to political questions.

Before all this in Minersville School Dt. v. Gobitis Felix Frankfurter J. observed, “Judicial Review as limitation on popular government and is a part of constitutional scheme of America.” Also in Cooper v. Aaron, the federal basis of judicial review was emphasised by the Court that Article VI of the Constitution makes the Constitution the ‘Supreme Law of the Land’. In Baker v. Carr, Brennan J. for the majority said, “Deciding whether a matter has in any measure been committed by the Constitution to another branch of Government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise of constitutional interpretation, and is a responsibility of this court as ultimate interpreter of the Constitution.”

Development Of Judicial Review In U.K

In Great Britain, the Judges are appointed by the Crown. The Courts of U.K are not burdened with interpretation of Constitution (as there is no written constitution) but only the laws. Therefore, there is no direct judicial review in U.K. But courts do resort to indirect judicial review at times. They interpret legal provisions restrictively to protect civil liberties. However, in 1610 in Dr. Bonham’s case, Coke LCJ , asserted: “When an act of Parliament is against common law right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void”. However, in Calvin's Case, decided two years earlier, Justice Coke stated that he and the other judges spoke of "a law eternal, the Moral law, called also the Law of Nature" and that Parliament could not take from a man "that protection which the law of nature giveth unto him.".

But in the case of City of London v. Wood Chief Justice Holt remarked that “An Act of Parliament can do no wrong, though it may do several things that look pretty odd.” This remark establishes the ‘Doctrine of Parliamentary Sovereignty’ & in time during conflict between the Crown and Parliament, judges sided with Parliament and, in the process, accepted the theory of Parliamentary Sovereignty.

Earlier, there was no scope of judicial review in U.K., but after the formation of European Convention of Human Rights, the scope of judicial review became wider. The enactment of Human Rights Act, 1998 required the domestic Courts to protect the rights of individuals, thus in Les Verts v. European Parliament, it was held that the “European Union is a community based on the Rule of law, inasmuch as neither its member states nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional character.” Thus, through this judgment a significant increase in the scope of judicial review in U.K. was seen. Today the scenario in U.K. is much deviated towards the judicial review the Courts now strictly follow the principles of judicial review with regard to administrative actions and secondary legislations.

Development Of Judicial Review In India

The doctrine of judicial review is also applicable in India. In India it comprises of three aspects: (1) Judicial review of legislative action, (2) judicial review of judicial decisions and (3) judicial review of administrative action.

The Constitution of India explicitly establishes the doctrine of judicial review in several Articles. Article 13(2) imposes a constitutional duty on our Courts to interpret the Constitution and declare the law as unconstitutional if found to be contrary to any constitutional provision. The courts act as sentinel on the qui vive so far as the Constitution is concerned. In the Draft Constitution of India, this power of Judicial Review in relation to fundamental rights found formal expression in Art. 8 (2) and Art. 25 (1) & (2) which, when adopted by the nation’s representatives in the Constituent Assembly on November 26, 1949, became the new Arts. 13 (2) and 32 (1) & (2), respectively. As a result, Judicial Review, which was recognized as the basic and indispensable precondition for safeguarding the rights and liberties of the individuals, was sought to be tempered by the urge for building up a new society based on the concept of welfare and social righteousness.

The Supreme Court has from time to time indulged in genuine and needful judicial activism and judicial review. It gave birth to the famous and most needed “Doctrine of Basic Structure”. The need of the changing society encouraged it to formulate and incorporate various theories, which originated outside India like “Doctrine of proportionality”. In State of Madras v. V. G. Row observed: “The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all the cases. In Om Kumar v. UOI, the Apex Court evolved the principle of primary and secondary review. The doctrine of primary review was held to be applicable in relation to the statutes, statutory rules, or any order, which has force of statute & the secondary review was held to be applicable inter alia in relation to the action in a case where the executive is guilty of acting arbitrarily. In such a case Article 14 would be attracted. In Delhi Development Authority v. M/S UEE Electrical Engg. P. Ltd. the Supreme Court dealt with the judicial review of administrative action in detail.

Originally Government of India Act, 1858 and Indian Council Act, 1861 imposed some restrictions on the powers of Governor General in Council in evading laws, but there was no provision of judicial review. But Emperor v. Burah was the first case which interpreted and originated the concept of judicial review in India.

In the post-independence era the first case related to Judicial Review was the A. K. Gopalan case in which Supreme Court emphasized – “In India it is the Constitution that is supreme” and that a “statue law to be valid, must in all cases be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not” and if a legislature transgresses any constitutional limits, the court has to declare the law unconstitutional “for the court is bound by its oath to uphold the Constitution.”

However, it was Justice Bhagwati who expounded the doctrine of supremacy of the constitution and judicial review in the case of State of Rajasthan v. Union of India - “It is necessary to assert in the clearest terms particularly in the context of recent history, that the constitution is supreme lex, the permanent law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the constitution and it has to act within the limits of its authority. No one however highly placed and no authority howsoever lofty can claim that it shall be the dole judge of the extent of its power under the constitution or whether its action is within the confines of such power laid down by the constitution. Tis court is the ultimate interpreter of the constitution and to this court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits”.

Further in the case of Kesavananda Bharati v. State of Kerala Justice Khanna – “As long as some fundamental rights exist and are a part of the Constitution. The power of judicial review has also to be exercised with a view to see that the guarantees afforded by these rights are not contravened …... Judicial Review has thus become an integral part of our Constitution system ……….”

In the case of Charanjit Lal Chaudhuri v. The Union of India, Justice Mukherjee observed: “The court should prima facie lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground.”

Whereas in the case I.C. Golaknath & Ors. v. State of Punjab & Anr. the question of parliaments power to amend constitution & validity of 17th Constitution Amendment was raised. The Supreme Court while answering to the question that whether the amending process involves political questions & is outside the scope of judicial review or not? held that an amendment to the Constitution is ‘law’ within the meaning of Art. 13(2) and is therefore subject to Part III of the Constitution and thus comes within the scope of judicial review.

From ‘Gopalan’ to ‘Golaknath’ is, indeed, a long march, not only in respect of the nature and scope of Judicial Review itself, but in regard to the impact and consequences of such Review on the attainment of social objectives, too. These two cases represent two distinct lines of judicial thinking, two distinct tendencies, and, also two separate sets of social philosophy. One represents a halting, over-cautious and tradition-bound attitude of the judiciary in restricting its own freedom of action by sticking to the express phraseology of the Constitution, scrupulously avoiding the nations of ‘Natural Justice’ and ‘Due Process’, and construing the law in favour of the legislature; the other represents a big, bold, and almost revolutionary effort to resurrect Judicial Review by expanding its horizon beyond a literal interpretation of the Constitution, introducing novel concepts like ‘prospective overruling’ and convening a Constituent assembly to amend the Fundamental Rights, and by prohibiting any legislative amendment of Fundamental Rights in future. The ‘Gopalan’ decision, while restricting the ambit of the individual’s rights to freedom and personal liberty, paved the way to the realization of the social objectives by its clear enunciation of the principle of judicial subordination to legislative wisdom and discretion, and by its emphasis on social control of individual liberties. The ‘Golaknath’ case, while trumpeting the individuals’ basic liberties as sacrosanct and transcendental, has indeed, made it almost impossible to enact social welfare legislation.

In the recent case of I. R. Coelho v. State of Tamil Nadu, the petitioner challenged the various Central and State laws put in the Ninth Schedule including the Tamil Nadu Reservation Act. The Nine Judges Bench held that “any law placed in the Ninth Schedule after April 24, 1973 when Keshvananda Bharati’s case judgment was delivered will open to challenge ….……..”. The Supreme Court also observed that “Judicial Review of legislative actions is the touchstone of the basic structure of the Constitution”.

Judicial Review In U.S.A, U.K. & India: A Comparison

At the time of India’s independence Winston Churchill remarked that political power was being handed over to a few ‘men of straw’ who may not be able to administer the country properly. But by 1959 one could find a noticeable change in this attitude when John Stratchy commented that the institution of parliamentary democracy was ‘a remarkable, if precarious achievement’ in India as the parliamentary system in India has ensured participation, stability and minimal violence, which explain that with some reforms it could become more vibrant and meaningful.

The scope of judicial review is wider in India as compared to that of US and UK because US Constitution is very concise in nature and the words and expression are used therein are vague and general in nature. US Constitution is the most rigid Constitution in the world, whereas Indian Constitution is rigid as well as flexible in nature at the same time, it has detailed provisions and it is the wealthiest Constitution in the world. The words and expressions used in the Indian Constitution are specific and exact. Whereas, on the part of U.K., there is no written Constitution, therefore in U.K. scope of judicial review is very limited in nature.

Judicial review in US is the formulation by court. wherein U.K. judicial review totally depend on discretion of the Court. However, in India unlike U.S.A & U.K. Art. 13 provides for “Judicial Review of Pre- constitutional as well as Post-Constitutional laws”.

Indian Courts use this wide power of judicial review for Constitutional Amendments, Legislative Acts and Administrative acts. Whereas U.S.A Constitution is very rigid in nature therefore review of constitutional amendment in very rarely used, Supreme Court of US has power to scrutinize the Legislative Act and Administrative act which is contrary to Constitution. While in UK there is no scope to check the validity of Legislative acts of Parliament, but secondary legislations are subject to judicial review.

The American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ which is contained in the Indian Constitution. The Supreme Court of USA worked with strict caution in determining the constitutionality of legislative Act on the substantive grounds as well as procedural grounds. Whereas the Indian Courts can declare void acts on only on the substantive grounds. Court cannot make laws in India because it’s not the role of judiciary, Court can only interpret and determine the law, but in US judges made law exists, judges strictly scrutinize the law and if they are found invalid then they are declared void. It must, however, be conceded that the American Supreme Court has consumed its power to interpret the constitution liberally and has made so thorough a use of the ‘due process of law’ clause that it has become more than a mere interpreter of law. It has, in fact come to occupy the position of a maker of law and has been correctly described as a ‘third chamber of the legislature’. Of course, the US Supreme Court has assumed this position; it has not been specifically conferred upon it by the constitution. The framers of the Indian constitution took good care not to embody the due process of law clause in the constitution. On the contrary, the Indian constitution refers it to ‘procedure established by law’. It can invalidate laws if they violate provisions of the constitution. In other words, the Indian Judiciary including the Supreme Court is not a Third Chamber claiming the power to sit in judgement on the policy embodied in the legislation passed by the legislature. The Supreme Court while conducting judicial review, tests (1)as to whether the law has been made strictly in accordance with the provisions of the Constitution or not; and (2)as to whether the law satisfies the ends of justice and meets the ‘due process of law’ or ‘procedure established by law’ i.e. whether it is fair and just or not. The law is declared invalid if it fails to satisfy either of these two tests.

By judicial review of administrative acts all the executive’s actions can be determined by Courts if they are illegal, irrational, mala fide in nature. All the administrative and ministerial acts can be challenged if they exceed his power. This doctrine of judicial review of administrative and executive action exist in all the three countries (i.e. USA, UK & India).

Sovereignty is located neither in parliament nor in the judiciary but in the constitution, itself. This review system also has same situation. If Supreme Court use it only for country then it is very good but if Supreme Court uses it and keeps their own interests in mind, it is worse for country as well as countrymen. But we know that from the ‘Principle Of Judicial Care’, Supreme Court never use it against national interests and judges keep national interest, safety, progress and dignity in their mind instead of their own interests or conflicts. So, we can say it is very useful and beneficial for all the countries.

DIFFERENCE BETWEEN ‘DUE PROCESS OF LAW’ & ‘PROCEDURE ESTABLISHED BY LAW’

The Vth Amendment of the U.S. Constitution lays down inter alia that “no person shall be deprived of his life, liberty or property, without due process of law”. This clause is known as the due process clause, has been the most significant single source of judicial review in the U.S.A. The word ‘due’ in this clause is interpreted to mean ‘just’, ‘proper’ or ‘reasonable’. Therefore, the courts can pronounce whether a law affecting a person’s life, liberty or property is reasonable or not. The court may declare a law invalid if it does not accord with its notions of what is just and fair in the circumstances. The word ‘due’ is of variable content in the ‘due process’ concept. It denotes that the law should be ‘just’ but what is ‘just and reasonable is not a static or rigid concept; it varies from situation to situation, and what may be regarded as reasonable in one situation may not necessarily be so in another situation. The US Supreme Court uses ‘due process’ clause to extend both procedural and substantive safeguards to “Life, liberty and property”.

Due process has two aspects. The substantive due process envisages that the substantive provisions of a law should be reasonable and not arbitrary. Procedural due process envisages a reasonable procedure, i.e., the person affected should have fair right of hearing which includes four elements; (i) notice, (ii) opportunity to be heard, (iii) an impartial tribunal and (iv) an orderly procedure.

As far as India is concert, it was contended in the Gopalan case that the expression ‘procedure established by law’ in Article 21 of the Indian Constitution was synonymous with the American concept of ‘procedure due process’ and, therefore, the reasonableness of the Preventive Detention Act, or for that matter, of any law affecting a person’s life or personal liberty, should be justiciable in order to assess whether the person affected was given a right of fair hearing. The Indian Supreme Court gave several reasons to differentiate between the Indian and American Constitution in following points:

First, the word ‘due’ was absent in Art. 21. This was a very significant omission for the entire efficacy of the procedural due process concept emanates from the word ‘due’.

Secondly, the draft constitution had contained the words ‘due process of law’ but these words were later dropped and the present phraseology adopted instead. This was strong evidence to show that the Constitution Assembly did not desire to introduce into India the concept of procedural due process. This was done mainly to avoid the uncertainty surrounding the due process concept in the USA.

Thirdly, the American doctrine generated the countervailing, but complicated, doctrine of police power to restrict the ambit of due process, i.e., the doctrine of governmental power to regulate private rights in public interest.

Conclusion

According to Schwartz – “A constitution is naught but empty words if it cannot be enforced by the courts. It is judicial review that makes constitutional provisions more than mere maxims of political morality. In practice, there can be no constitution without judicial review. It provides the only adequate safeguard that has been invented against the unconstitutional legislations. It I, in truth, the sin qua non of the constitutional structure.”

Like other organs of the state, the judiciary derives its powers from the constitution and the judges are as much under the constitution as anyone else. They can interpret and invalidate laws but they cannot themselves assume the law-making function; nor can they confer that function on any person or institution other than the federal or provincial legislatures.

It is commonly pointed out that Judicial Review is essentially a negative, limiting and undemocratic concept. But this view is at best one-sided and partial. In making a fair, rational and balanced assessment of the doctrine of Judicial Review, it has to be borne in mind that Judicial Review, like the Constitution itself, affirms as well as negates; it is both a power-releasing and power-breaking function.

Despite various shortcomings of judicial review, it cannot be denied that it has played an important role in ensuring safety of constitutional government in the country & by keeping the centre and the states in their respective spheres. It has also enabled the Constitution to change according to changed conditions by imparting new meaning to the Constitution. Through the exercise of this power, the Supreme Court has protected the freedom of citizens and protected their Fundamental Rights against encroachment by the legislative and executive wings of the government. Therefore, the courts must so interpret the constitution that it does not fall behind the changing, contemporary societal needs. The words of the constitution remain the same, but their significance changes from time to time through judicial interpretation.

Though the courts have the power of judicial review, the same cannot be exercised in an arbitrary fashion. If the law-making power of parliament is not unlimited, the courts` power to review the laws passed by parliament is also not unlimited. At last I will only say – There is nothing in the world which is bad or good for itself but it is its uses which make it bad or good.