This article seeks to compare the evolution of the concept of Judicial Review in India and the USA.


Judicial AND Review AND India AND USA AND Legislature AND Executive AND Judiciary AND democracy


The doctrine of judicial review confers power on the courts to review and determine the validity and legitimacy of any action taken by the legislature, executive or judiciary.

It is pertinent to note that arbitrary acts of any government or authority are not permissible in a democratic state under the rule of law. There exists no unfettered discretion or unaccountable action where the rule of law prevails.

The judicial process is the heart and soul of a democracy that calls for the independence of judiciary free from any executive control.

The amending power of the Constitution is vested in the Legislature. Different countries hold varying views with respect to judicial review of constitutional amendments. Some countries argue that being political in nature, it is outside the purview of judicial decisions. Whereas, others argue that even though it is a political question, it is the duty of the judiciary to exercise its constitutional responsibility.


The Constitution of the United States in Article VIstates that the supreme law of the land is the Constitution itself and the laws, treaties etc. made in its pursuance.

Article III Section I of the US Constitution vests the judicial power on the Supreme Court and in other inferior courts that are established by the Congress.

The concept of judicial review,in USA, was first recognized inMarbury v. Madison, wherein it was enunciated by the Court that a law that violates the Constitution is unconstitutional. The language used in the Constitution of the United States affirms and strengthens that any law contrary to the Constitution is void.

However, in 1939, inColeman v. Miller, it was hastily ruled by the Court that the issues relating to constitutional amendments are political questions and must be decided by the Congress. Further, it was observed that judicial review cannot be done by the Apex Courtwith respect to constitutional amendment matters since they were regarded to be political in nature. For the first time, constitutional modifications were recognised to be political issues. It is worth noting that, prior to Coleman case, the validity of the amendments in disputewas upheld and judicial review had never been denied before.


Indian Constitution has, since its inception, conferred judicial review power on the Apex Court as well as the High Courts. The Apex Court has time and again asserted that courts have the power to review constitutional amendments, which is opposed to the practice in the United States.

Apex Court noted in N.B. Khare v. State of Delhithat the issue to be decided was whether or not the limitations imposed by the impugned legislation on the exercise of the rights were reasonable or not and held that it had the right to evaluate the same.

Till the present day, several constitutional amendments have been challenged on substantive grounds in India. The 1st Constitutional Amendment was contested in Shankari Prasad case. The Petitioner argued that even in the absence of an express bar, constitutional amendments cannot change the fundamental rights. The Hon'ble Supreme Court ruled that,in the Constitution there was no such restriction.

The Apex Court made it clear in Golak Nath case, that constitutional amendments can be reviewed as well as nullified for unconstitutionality. The Apex Court observed that a constitutional amendment is a law as per Article 13 and consequently,the Court has the power to exercise judicial review. Further, it was ruled that the Parliament does not have the authority to change Part III of the Constitution in any way that would limit or take away the fundamental rights guaranteed therein. The decision rendered in Sankari Prasad case was overturned by the Court for the reason that fundamental rights cannot be altered by amending the Constitution, but, interestingly, it did not strike down the 1st, 4th and 17th Constitutional Amendment despite observing that they abridged the scope of the fundamental rights.

After the Golaknath case, the government vehemently reacted and passed the 24th Constitutional Amendment, which superseded the judgment rendered in the said case and extended the Parliament's amending power. In Kesavananda Bharatithe aforementioned Amendment Act along with two others were challenged. The basic structure doctrine was propounded by the Apex Court in this case. As a result, there was an increase in the Court's capacityfor judicial review.The Apex Court opined that one of the elements on which our Constitution's system of checks and balances is based is judicial review, which is expressly provided in Article 32 and Article 226 of the Indian Constitution. Thus, constitutional interpretation is a function of the judiciary.

Since the Kesavananda Bharati case, it is an accepted principlethat constitutional amendments are judicially reviewable on both substantive and procedural grounds. However, in 1976, the Parliament passed the 42nd Amendment for curtailing the power of the Apex Court to review constitutional amendments. In Minerva Millsthe clauses of the 42nd Amendmentwere slashed because they were incoherent with the Constitution's basic structure. It was held that an essential tenet of our constitutional systemis that every organ derives its power from the Constitution itself. As a result, it is imperative that it functions within the limits of such power. The Judiciary has the power of judicial review to determine the legality of any legislative or executive act as per Articles 32 and 226 of the Constitution.


In view of the historical background of the two countries, the following can be ascertained with respect to the concept of judicial review in the USA and in India:

  • Exercise of judicial power

In India, the power of judicial review is a basic structure of the Constitution.The Indian Constitution, under Article 32 and Article 226 vests the power of judicial review on the Apex Court and the High Courts for determining whether any legislative act is coherent with the Constitution or not.On the other hand, the judicial power, as per the Constitution of the USA can only be exercised by courts created under Section 1 of Article III. However, the US Congress can confer this judicial power upon inferior courts provided that it ensures the independence of judges.

  • Grounds of judicial review

In India, the Supreme Court and the High Courts can review constitutional amendments on procedural as well as substantive grounds, in contrast to the US where the Courts refrains from reviewing constitutional amendments on either of these grounds.

  • Political Question

In the Minerva Mills case, the Apex Court stipulated that if a question creates an issue of constitutional determination, the fact that it has a political facet should not be a reason for the court to hesitate in carrying out its constitutional responsibility.Similarly, the Supreme Court of the USA has taken political issues under consideration because they created constitutional challenges. For example, the Court held in Gomellion v. Lightfootthat a law that results in the denial of one's constitutional rights is not free from challenge only for the reason that the legislature's chosen technique is the redefinition of municipal boundaries.

Therefore, it can be concluded that due toIndia's federal nature, the supreme law of India is the Constitution. Any competent court may declare a legislative act unlawful if it contravenes the constitutional provisions. Therefore, the Courts can do judicial review to ensure that the government does not transgress its authority.

However, in the USA, the Supreme Court refrains from exerting this power of judicial review. Subsequent to the decision in Coleman case, constitutional amendments are no longer reviewed by the judiciary on either procedural or substantive fronts. It may be because of the rigidity of the US Constitution's amendment process that has made judicial review of constitutional amendments undesirable.

It is safe to say that the present established concept in the USA is that the Courts do not review constitutional amendments.


  1. State of W.B. v. Debasish Mukherjee, (2011) 14 SCC 187
  2. S. Constitution
  3. Marbury v. Madison, 5 U.S. 137 (1803)
  4. Coleman v. Miller 07 U.S. 433; 59 S.Ct. 972.
  5. B. Khare v. State of Delhi, 1950 SCC 522
  6. Shankari Prasad Singh Deo v. Union of India, 1951 SCC 966
  7. Golak Nath v. State of Punjab, (1967) 2 SCR 762
  8. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
  9. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
  10. Chandra Kumar v. Union of India, (1997) 3 SCC 261
  11. State of Madras v. V.G. Row, (1952) 1 SCC 410
  12. Gomillion v. Lightfoot, 364 U.S. 339 (1960)

Author's Name: Sonakshi Pandey,

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