Table of Contents

1. Introduction
2. Origin of Judicial Review
3. Meaning of Judicial Review
4. Judicial Review in England
i. The justification for judicial review
ii. Grounds of judicial review
iii. Conflict of Approach
5. Judicial Review in Australia
i. Sources of judicial review
ii. Operation of judicial review
6. Judicial Review in Canada
7. Judicial Review in Unites States of America
i. Authority for judicial review
ii. Marbury v. Madison
iii. Limitations on judicial review
8. Judicial Review in India
i. Courts which may determine the constitutionality of a law and
forms of review
ii. Limitations on judicial review
a) Constitutional Limitations
b) Intrinsic Limitations
c) Self Imposed Limitations

9. Conclusion

Judicial Review: A Comparative Study

1
"If you can invent it" judicial review "you can do whatever you want with it."
An observation, made by Justice Anthony Kennedy, about why it made a
difference whether judicial review is implicit in the Constitution or an invention of
judges.

The Constitution of a country is not merely a document. It is a living,

breathing institution. It has to change and adapt itself to suit the needs of
changing people. The Indian constitution is no exception. It has grown to fit
the requirement of a country very different from the one that was seen at its
inception. During the evolution, it has been nurtured and led through the
various stages of its development by the judiciary. The functioning of the
constitution, as we see it today, has been fashioned out of interpretation and
review by the judiciary.

Judicial review is a great weapon in the hands of judges. It comprises the

power of a court to hold unconstitutional and unenforceable any law or order
based upon such law or any other action by a public authority which is
inconsistent or in conflict with the basic law of the land.

Origin of Judicial Review:

1
Nowhere in the Constitution does it authorize judicial review. This lack of
authorization has resulted in centuries of debates over the origins of judicial
review. Many discussions of judicial review begin with Marbury v. Madison
whereas others begin their analysis pre-Marbury. There are two theories about
the origin of Judicial Review which are as follows:

1
From the Selected Works of Lawarance J Perrone, May 2008

2
(1) early English courts practice of reviewing corporate by-laws for
repugnancy to the laws of England2 and (2) that these repugnant reviews
were grounded in the thought that principles of natural law control any human
law.
(1) Judicial review arose from a longstanding English corporate practice under
which a corporations ordinances were reviewed for repugnancy to the laws of
England. This English corporation law subsequently became a transatlantic
constitution binding American colonial law by a similar standard
of not being repugnant to the laws of England. After the Revolution, this
practice of bounded legislation slid inexorably into a constitutional practice, as
the Constitution replaced the laws of England. With the Constitution
understood to embody the supreme authority of the people, the judiciary
would void ordinary legislation repugnant to this supreme law. Over a century
later, this practice gained a new name: judicial review.3
(2) The great Lord Ellsmore once inquired, If the words of a statute be
contraryant or repugnant, what is there then to be said?4 Coke would
invalidate laws that were against common right
and reason, or repugnant5 to the laws of England. Likewise, whether
Marshall was correct or not, he was clear: It is a proposition too plain to be
contested, that the constitution controls any legislative act repugnant to it; or,
that the legislature may alter the constitution by an ordinary act.6 The word
repugnant is used six times in Marbury.7 In 2005, Justice John Paul Stevens

2
Mary S. Bilder, The Corporate Origins of Judicial Review, 116 Yale L. J. 502 (2006)
3
Ibid
4
S.E. Thorne, Dr. Bonhams Case, 1938 Law. Q. Rev. 543, 549, reprinted in S.E. Thorne,
Essays in English Legal History 269, 275 (Hambledon Press 1985).
5
Bonhams Case, 77 Eng. Rep. 638.
6
Marbury v. Madison 1 Cranch 137 (1803)
7
Id.

3
declared that [b]ecause the statute itself is not repugnant to the Constitution.. ,
the Court does not have the constitutional authority to invalidate it.8

Meaning of Judicial Review:

The dictionary meaning of review is the act of looking over something
(again) with a view to correction or improvement 9. The primary legal
meaning of the term, accordingly, is the revision of the sentence or decree of
one court by a higher court.
It means a courts power to hold statutes invalid because of conflict with the
Constitution; the power of a court to pass upon the Constitutionality of acts
of a co-ordinate branch of government.10 In Black Law Dictionary (7th
Edition 1999) it is stated thus: (a) a courts power to review the action of
other branches or levels of government especially the courts power to
declare immediate legislative and executive actions as being
unconstitutional, (b) the constitutional doctrine providing for this power, (c)
a courts review of a lower courts or an administration bodys factual or
legal findings.
Judicial review as the words imply is not an appeal from a decision, but a
review of the matter in which the decision was made.11
The concept of judicial review flows from the concept of limited
government and from the theory of two laws, ordinary and organic. As soon
as it is assumed that there is a paramount law which constitutes the
foundation and source of all other legislative authorities in the body politic,
it follows that any act of the ordinary law-making bodies which contravenes
8
United States v. Booker, 543 U.S. 220, 283 (2005) (Stevens, J., dissenting) (citing Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)
9
Shorter Oxford English Dictionary.
10
Craig R. Ducat on Constitutional Interpretation.
11
Chief Constable of North Wales Police v. Evans, (1982) 3 All ER 141; Geetanjali Patnaik v. State of
Orissa AIR 1996 Ori 157

4
the provisions of the paramount law, must be void and that there must be
some organ which is to possess the authority or power to pronounce such
legislative act as void.

Judicial Review in England

Judicial review is a procedure in English administrative law by which

the courts in England and Wales supervise the exercise of public power on
the application of an individual. A person who feels that an exercise of such
power by a government authority, such as a minister, the local council or a
statutory tribunal, is unlawful, perhaps because it has violated his or her
rights, may apply to the Administrative Court (a division of the High Court)
for judicial review of the decision and have it set aside (quashed) and
possibly obtain damages. A court may also make mandatory
orders or injunctions to compel the authority to do its duty or to stop it from
acting illegally.

The English doctrine of parliamentary supremacy means that the law does
not know judicial review of primary legislation (laws passed by
the Parliament of the United Kingdom), except in a few cases where primary
legislation is contrary to the law of the European Union. This limits judicial
review in English law to the decisions of public bodies and secondary
(delegated) legislation, against which ordinary common law remedies as
well as special "prerogative orders" are available in certain circumstances.

The justification for judicial review:

5
There has been a lively debate in England about the constitutional
justification for judicial review.12 This is an important question
because the answer to it may affect the development of judicial
review. In my view the constitutional justification for the major and
statute based part judicial review is the ultra vires doctrine: when the
executive strays beyond its statutory powers the judiciary is
empowered to declare such acts invalid. In Page and again in
Boddington the House of Lords adopted this explanation of the statute
based part of judicial review.13 How does this explanation fit into
constitutional theory? In M v. Home Office Nolan L.J observed that
"... the proper constitutional relationship of the courts with the
executive is that the courts will respect all acts of the executive
within its lawful sphere, and the executive will respect all
decisions of the court as to what its lawful province is".14 To this
explanation one must add that in making decisions in judicial review
cases judges are constrained by the principle of institutional
integrity. They must make their decisions on principled grounds.
There is a Rubicon which they may not cross.

In R v Glamorganshire Inhabitants,15 Holt CJ stated:

12
D. Oliver, "Is the Ultra Vires Rule the Basis of Judicial Review? [1987] P.L. 543; Paul Craig,
"Ultra Vires and the Foundations of Judicial Review" [1998] C.L.J. 63; Forsyth, "Of Fig Leaves
and Fairy Tales: The ultra vires Doctrine, the Sovereignty of Parliament and judicial Review"
[1996] C.L.J. 122.

13
R. v. Lord Chancellor, ex-parte Page [1993] A.C. 682; Boddington v. British Transport
Police [1998] 2 W.L.R. 639.
14
[1992] 1 Q.B. 220, at 314H-315A
15
[1792] EngR 1962; (1700) 1 Ld Raym 580; 91 ER 1287, 1288

6
This Court will examine the proceedings of all jurisdictions erected by Act
of Parliament. And if they, under pretense of such Act, proceed to encroach
jurisdiction to themselves greater than the Act warrants, this court will send
a certiorari to them.

This dictum established nothing but that which the words stated: the court
will intervene to correct an excess of power.

The constitutional theory of judicial review has long been dominated by the
doctrine of ultra vires, under which a decision of a public authority can only
be set aside if it exceeds the powers granted to it by Parliament. The role of
the courts was seen as enforcing the "will of Parliament" in accordance with
the doctrine of Parliamentary sovereignty. However, the doctrine has been
widely interpreted to include errors of law16 and of fact and the courts have
also declared the decisions taken under the Royal Prerogative to be
amenable to judicial review.17 Therefore it seems that today the
constitutional position of judicial review is dictated by the need to prevent
the abuse of power by the executive as well as to protect individual rights.18

In Council of Civil Service Unions v Minister for the Civil Service 19, Lord
Diplock summarized the grounds for reversing an administrative decision by
way of judicial review as follows:

Illegality,
Irrationality (Unreasonableness) &
Procedural impropriety.

16
Anisminic v Foreign Compensation Commission [1969] 2 AC 147
17
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
18
http://en.wikipedia.org/wiki/Judicial_Review_in_English_Law
19
[1985] AC 374

7
The first two grounds are known as substantive grounds of judicial review
because they relate to the substance of the disputed decision. Procedural
impropriety is a procedural ground because it is aimed at the decision-
making procedure rather than the content of the decision itself. The three
grounds are mere indications: the same set of facts may give rise to two or
all three grounds for judicial review.

Illegality
In Lord Diplock's words, this ground means that the decision maker "must
understand correctly the law that regulates his decision-making power and
must give effect to it."
A decision may be illegal for many different reasons. There are no hard and
fast rules for their classification, but the most common examples of cases
where the courts hold administrative decisions to be unlawful are the
following:
The decision is taken by the wrong person (unlawful sub-delegation)
If the law empowers a particular authority, e.g. a minister, to take certain
decisions, the Minister cannot sub delegate this power to another authority,
e.g. an executive officer or a committee. This differs from a routine job not
involving much discretion being done by civil servants in the Minister's
name, which is not considered delegation.20 An example of when this
happened was in Allingham v Minister of Agriculture and Fisheries where
a notice preventing farmers from growing sugar beet was unlawful because
the power to put up the sign was delegated by the original committee.
Error of law or error of fact

20
Allingham v The Minister of Agriculture and Fisheries (High Court, 1948); Carltona v Commissioner of
Works (Court of Appeal, 1943); R v Secretary of State for the Home Office Ex p Oladehinde (House of
Lords, 1990)

8
The court will quash a decision where the authority has misunderstood a
legal term or incorrectly evaluated a fact that is essential for deciding
whether or not it has certain powers. So, in R v Secretary of State for the
Home Department, ex parte Khawaja [1984] AC 74, the House of Lords
held that the question whether the applicants were "illegal immigrants" was
a question of fact that had to be positively proved by the Home Secretary
before he could use the power to expel them. The power depended on them
being "illegal immigrants" and any error in relation to that fact took the
Home Secretary outside his jurisdiction to expel them. However, where a
term to be evaluated by the authority so broad and vague that reasonable
people may reasonably disagree about its meaning, it is generally for the
authority to evaluate its meaning. For example, in R v Hillingdon Borough
Council ex Parte Pulhofer [1986] AC 484, the local authority had to
provide homeless persons with accommodation. The applicants were a
married couple, who lived with her two children in one room and applied to
the local authority for aid. The local authority refused aid because it
considered that the Pulhofers were not homeless and the House of Lords
upheld this decision because whether the applicants had accommodation was
a question of fact for the authority to determine.
The powers used for the purpose different from the one envisaged by
the law under which they were granted
A good example of this is the case of R v Secretary of State for Foreign
Affairs Ex p The World Development Movement. Section 1 of the Overseas
Development and Co-operation Act 1980 empowered the Secretary of State
for Foreign Affairs to assign funds for development aid of economically
sound projects. The Secretary assigned the funds for a project to construct a
power station on the Pergau River in Malaysia which was considered as
9
uneconomic and not sound. The House of Lords held that this was not the
purpose envisaged by the enabling statute and the Minister therefore
exceeded his powers.
Ignoring relevant considerations or taking irrelevant considerations into
account
This ground is closely connected to illegality as a result of powers being
used for the wrong purpose. For example Wheeler v Leicester City Council,
where the City Council banned rugby club from using its ground because
three of the club's members went on a tour in South Africa at the time of
apartheid. In R v Somerset County Council Ex parte Fewings the local
authority decided to ban stag hunting on the grounds of it being immoral. In
Padfield v Ministry of Agriculture, Fisheries and Food, the Minister refused
to mount an inquiry into a certain matter because he was afraid of bad
publicity. In R v ILEA Ex parte Westminster City Council [1948] 1 KB 223,
the London Education Authority used its powers to inform the public for the
purpose of convincing the public of its political point of view. In all these
cases, the authorities have based their decisions on considerations, which
were not relevant to their decision making power and have acted
unreasonably.
Note that the improper purpose or the irrelevant consideration must be such
as to materially influence the decision. Where the improper purpose is not of
such material influence, the authority may be held to be acting within its
lawful discretion. So R v Broadcasting Complaints Commission Ex parte
Owen [1985] QB 1153, where the Broadcasting authority refused to consider
a complaint that a political party has been given too little broadcasting time
mainly for good reasons, but also with some irrelevant considerations, which
however were not of material influence on the decision.
10
Fettering discretion
An authority will be acting unreasonably where it refuses to hear
applications or makes certain decisions without taking individual
circumstances into account by reference to a certain policy. BOC v Minister
of technology 1971. When an authority is given discretion, it cannot bind
itself as to the way in which this discretion will be exercised either by
internal policies or obligations to others. Even though an authority may
establish internal guidelines, it should be prepared to make exceptions on the
basis of every individual case.21 This has changed in modern times, with the
new coalition government providing an overrulement.
Irrationality
Under Lord Diplock's classification, a decision is irrational if it is "so
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question could have arrived
at it." This standard is also known as Wednesbury unreasonableness, after
the decision in Associated Provincial Picture Houses Ltd v Wednesbury
Corporation, where it was first imposed.
Unlike illegality and procedural impropriety, the courts under this head look
at the merits of the decision, rather than at the procedure by which it was
arrived at or the legal basis on which it was founded. The question to ask is
whether the decision "makes sense". In many circumstances listed under
"illegality", the decision may also be considered irrational.
Proportionality
Proportionality is a requirement that a decision is proportionate to the aim
that it seeks to achieve. E.g. an order to forbid a protest march on the

21
Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231; British Oxygen v Minister
of Technology [1971] AC 610

11
grounds of public safety should not be made if there is an alternative way of
protecting public safety, e.g. by assigning an alternative route for the march.
Proportionality exists as a ground for setting aside administrative decisions
in most continental legal systems and is recognised in England in cases
where issues of EC law and ECHR rights are involved. However, it is not as
yet a separate ground of judicial review, although Lord Diplock has alluded
to the possibility of it being recognised as such in the future. At present, lack
of proportionality may be used as an argument for a decision being
irrational.22
Procedural impropriety
A decision suffers from procedural impropriety if in the process of its
making the procedures prescribed by statute have not been followed or if the
'rules of natural justice' have not been adhered to.
Statutory procedures
An Act of Parliament may subject the making of a certain decision to a
procedure, such as the holding of a public hearing or inquiry,23 or a
consultation with an external adviser.24 Some decisions may be subject to
approval by a higher body. Courts distinguish between "mandatory"
requirements and "directory" requirements. A breach of mandatory
procedural requirements will lead to a decision being set aside for procedural
impropriety.
Breach of natural justice
The rules of natural justice require that the decision maker approaches the
decision making process with 'fairness'. What is fair in relation to a
particular case may differ. As pointed out by Lord Steyn in Lloyd v
22
R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532
23
Jackson Stansfields v Butterworth.
24
R v Social Services Secretary ex parte Association of Metropolitan Authorities

12
McMahon [1987] AC 625 "the rules of natural justice are not engraved on
tablets of stone." Below are some examples of what the rules of natural
justice require:
The rule against bias
The first basic rule of natural justice is that nobody may be a judge in his
own case. Any person that makes a judicial decision - and this includes e.g. a
decision of a public authority on a request for a license - must not have any
personal interest in the outcome of the decision. If such interest is present,
the decision maker must be disqualified even if no actual bias can be shown,
i.e. it is not demonstrated that the interest has influenced the decision 25. The
test as to whether the decision should be set aside is whether there is a "real
possibility [of bias]", as established in Gough v Chief Constable of the
Derbyshire Constabulary [2001]26, which dropped the 'fair minded
observer' part of the test.27
The right to a fair hearing
Whether or not a person was given a fair hearing of his case will depend on
the circumstances and the type of the decision to be made. The minimum
requirement is that the person gets the chance to present his case. If the
applicant has certain legitimate expectations, for example to have his license
renewed, the rules of natural justice may also require that they are given an
oral hearing and that their request may not be rejected without giving
reasons. Where the decision is judicial in nature, for example a dismissal of
an official in punishment for improper conduct, the rules of natural justice
require a hearing and the person questioned must know the case against
them and be able to examine and object to the evidence.
25
R v Bow Street Magistrates Pinochet [1999] 2 WLR 272
26
Gough v Chief Constable of the Derbyshire Constabulary [2001] 4 ALL ER 289
27
Magill v Porter [2002] AC 347.

13
Duty to give reasons
Unlike many other legal systems, English administrative law does not
recognize a general duty to give reasons for a decision of a public
authority.28 A duty to give reasons may be imposed by statute. Where it is
not, common law may imply such a duty and the courts do so particularly
with regard to judicial and quasi-judicial decisions.29

Conflict of Approach:
Proponents of the ultra vires doctrine appeal to the symbolism of
representative democracy, as an instant justification for the courts' powers of
judicial review. The courts quash decisions that Parliament notionally has
not authorised the decision-maker to make: 'By enforcing the boundaries of
Parliament's delegation, the courts tapped the "will of the people" as
expressed through Parliament'.30 Unrepentant democrats denounce
the unelected judges and deify the elected representatives of the people. For
Forsyth and Whittle, judicial review was an exceptional remedy. It allowed
an 'unelected judiciary' to review decisions made under laws enacted 'by
the elected representatives of the people in Parliament'.31 Hence their
question: 'Who are you [the judge] to interfere in the exercise of a discretion
entrusted to a democratically accountable decision-maker by a
democratically elected Parliament?'32 'How', they ask, 'consistently with the
democratic nature of our constitution ... can a non-elected element of the
constitution override the decision of a democratic element?' 33 Judicial review
28
R v Secretary of State for the Home Department Ex p Doody [1993] 3 All ER 92
29
Doody (above), R v Civil Service Appeal Board Ex p Cunningham [1991]4 All ER 310
30
Joseph, 'The Demise of Ultra Vires'
31
Forsyth and Whittle, above n. 18
32
Ibid
33
Ibid

14
was an exceptional remedy because of its implications for democratic
decision-making. The remedy lacked legitimacy but for Parliament's lifeline
to representative democracy.

Judicial Review in Australia:

Judicial review has long been considered an axiomatic part of

Australias legal system,34 despite the lack of any express provision in the
Australian Constitution conferring such a power on the High Court. In
Mark Tushnets terms, Australian judicial review is strong-form, as the
High Court maintains general authority to determine what the
Constitution means and its constitutional interpretations are authoritative
and binding on the legislatures and executives at the federal, State, and
Territory levels.35

Source of Judicial Review:

The legitimacy of the High Courts power of judicial review is well

established and rarely questioned.36 Surprisingly, however, its exact
constitutional source is unclear. No provision in the Australian Constitution
expressly authorizes judicial review. Rather, the power of judicial review
is said to arise by implication from several different constitutional
provisions.37 No generally accepted view exists regarding which provisions
support this implication. The strongest case for implying a power of judicial
34
Austl.Communist Party v. Commonwealth (1951) 83 C.L.R. 1, 262-63
(Fullagar, J.) [hereinafter Communist Party Case].
35
Mark Tushnet, Alternative Forms of Judicial Review, 101 MICH. L. REV. 2781, 2784 (2003).
36
Mason states there has been unqualified acceptance of judicial reviews legitimacy. See also Gerhardy v.
Brown (1985) 159 C.L.R. 70, 157-58 (Dawson, J.)
37
See Justice Michael Kirby, Judicial Review in a Time of TerrorismBusiness as
Usual, 22 S. AFR. J. HUM. RTS. 21, 22 24 (2006).

15
review relies upon Covering Clause5 of the Australian Constitution, which
states that [t]his Act, and all laws made by the Parliament of the
Commonwealth under the Constitution, shall be binding on the courts,
judges, and people of every State and of every part of the Commonwealth,
notwithstanding anything in the laws of any State.38 The power of judicial
review supposedly springs from Covering Clause 5s requirement that federal
laws made under the Constitution are binding.39 According to this
argument, courts, charged with administering the law, must be able to
determine whether a law is made under the Constitution to decide if that
law is binding.40 A similar argument is made with respect to section
76(i) of the Australian Constitution, which empowers the Federal
Parliament to confer jurisdiction upon the High Court in matters
[a]rising under this Constitution, or involving its interpretation. 41 It is
contended that this provision impliedly acknowledges the Courts
responsibility for judicial review of federal statutes for constitutional
validity.42

Section 75 of the Australian Constitution, which provides for the High Courts
original jurisdiction, is also relied upon as a basis for the judicial review
power. In Plaintiff S157/2002 v. Commonwealth, 43 Another constitutional
provision relied upon to support the judicial review power is section 109,
which provides that a state law inconsistent with a federal law shall be

38
AUSTL. CONST. covering clause 5.
39
OToole v. Charles David Proprietary Ltd. (1991) 171 C.L.R. 232, 251 (Mason,
C.J.); id. at 272 (Brennan, J.).
40
Although Lane sees no constitutional basis for judicial review, his outline of this argument is useful.
LANES COMMENTARY, supra note 37, at 13-14.
41
AUSTL. CONST. 76(i).
42
Mason, supra note 17, at 6. In this regard, Mason also refers to section 74 of the Constitution.
43
(2003) 211 C.L.R. 476 (Gleeson, C.J.)

16
invalid to the extent of the inconsistency.44 It is contended that section 109
contemplated that the courts would strike down inconsistent state laws,
thus providing a basis for the judicial review power.

Apart from textual arguments, the most common justification for the
existence of the High Courts judicial review power is originalist,
contending that the framers intended the High Court to possess such a
power.45 Certainly, support for this conclusion is readily found in the
Convention debates.46

The High Court has also relied on the nature of federalism in contending
that the power of judicial review comprises a necessary part of Australias
constitutional structure.47 Thus, in Boilermakers48 a majority stated:

In a federal form of government a part is necessarily assigned to the

judicature which places it in a position unknown in a unitary system or under a
flexible constitution where Parliament is supreme. A federal constitution must
be rigid. The government it establishes must be one of defined powers;
within those powers it must be paramount, but it must be incompetent to
go beyond them. The conception of independent governments existing in the
one area and exercising powers in different fields of action carefully defined
by law could not be carried into practical effect unless the ultimate
44
Section 109 is the equivalent of the Supremacy Clause of the United States Constitution. U.S. CONST. art.
VI, para. 2. See THE OXFORD COMPANION TO THE HIGH COURT OF AUSTRALIA 140 (Tony
Blackshield et al. eds., 2001).
45
Brian J. Galligan, Judicial Review in the Australian Federal System: Its Origin and
Function, 10 FED. L. REV. 367,381 (1979); Mason, supra note 17, at 3; HANKS &
CASS, supra note 13, at 20; George Winterton, The Communist Party Case, in
AUSTRALIAN CONSTITUTIONAL LANDMARKS 108, 127 (H.P. Lee & George
Winterton eds., 2003). .
46
See Galligan, supra note 51, at 379 (citing Federal Convention Debates (Adelaide, 1897))
47
See, e.g., The Queen v. Kirby; Ex parte Boilermakers Socy of Austl.
(Boilermakers) (1956) 94 C.L.R. 254, 267-68 (Dixon, C.J., McTiernan, Fullagar, and
Kitto, JJ.).
48
Id

17
responsibility of deciding upon the limits of the respective powers of the
government were placed in the federal judicature.49

The Operation of Judicial Review:

As a preliminary issue, in Australia, the power of judicial review does not

reside exclusively with the High Court. Instead, lower courts also possess
and exercise the power to decide constitutional questions. 50 However,
the High Court is the focus of attention regarding judicial review
because it stands at the apex of Australias judicial system, deciding the
most important constitutional cases.51 Unlike some constitutional courts, the
High Court does not exercise its power through any special referral
mechanism.52 Rather, constitutional questions come before the High Court in
the form of cases instituted by parties that, as part of the litigation, request the
court to review the validity of federal, state, and territorial legislation.53 The
party bringing the action must have standing.54 A case may be initiated in
a lower court and removed to the High Court,55 or may be determined by a
lower court and then appealed to the High Court.56 Alternatively, a case may
be initiated in the High Court based on its original jurisdiction.57 When a
49
Id. This excerpt is cited with approval in Victoria v. Commonwealth (1975) 134 C.L.R. at 379 (Gibbs,
J.).
50
Brian Opeskin, Australian Constitutional Law in a Global Era, in
REFLECTIONS ON THE AUSTRALIAN CONSTITUTION 171, 177-78 (Robert
French et al. eds., 2003).
51
Id. at 178. In the United States, as in the Australian system, all courts may also
exercise the judicial review power, whereas in countries such as France and
Germany a single judicial body is granted exclusive power to invalidate legislation.
Ackerman, supra note 22, at 668 n.75.
52
See LANE, supra note 70, at 16-17
53
See id.
54
Id. at 29-30.
55
Judiciary Act 40 (1903) (Austl.).
56
AUSTL. CONST. 73(ii); see also Judiciary Act 35, 35AA (1903) (Austl.); Federal Court of Australia
Act 33 (1976) (Austl.); Family Law Act 95 (1975) (Austl.). See LANE, supra note 70, at 16-17.
57
AUSTL. CONST. 75, 76; Judiciary Act 30 (1903) (Austl.); See LANE, supra
note 70, at 16-17.

18
party with the appropriate standing challenges the validity of legislation, the
High Court not only may declare acts of the Parliament to be void but . . . is
under a duty to do so.58

Judicial Review in Canada:

The first instance of statutory judicial review in Canada dates to 1878, when the
newly created Supreme Court (itself a statutory creation) found in Severn v.
The Queen that an Ontario licensing statute was ultra vires as it impinged on
the federal jurisdiction of trade and commerce. Statutory judicial review was
soon taken up by the Judicial Committee of the Privy Council (JCPC), the
appellate court of the Dominions and a Committee in the UK House of Lords,
who would employ it vigorously in the late 19th century in shaping federalism
in Canada and again in the 1930s to overturn the Depression combating
measures of Canadas New Deal. In 1982, however, the Canadian
government and nine of ten provinces agreed to patriate the
Canadian constitution, which had been from 1867 onwards the British North
America Act, an Act of the British Parliament. Included in this arrangement
was a new Charter of Rights and Freedoms, which gave the Supreme Court of
Canadasince 1949 the last court of appeal in the countrythe explicit
authority to review legislation of the provinces and federal government for
compatibility with the Charter; if the legislation was not compatible, then the
legislation would be of no force or effect. Included, however, was a
notwithstanding clause, which allowed Canadian legislatures to pass laws
notwithstanding certain Charter rights for a renewable term of five years.

58
Victoria v. Commonwealth (1975) 134 C.L.R. at 364 (Barwick, C.J.).

19
Although the notwithstanding clause has been used on occasions, it is
increasingly seen as politically undesirable. Statutory judicial review in Canada
is therefore not a new phenomenon, although its reach and use have expanded
enormously since the introduction of the Charter.

Canadian jurisprudence dates to the 1774 Quebec Act and the 1791
Constitutional Act which provided for a mixture of civil and common law and
limited domestic government, and was greatly expanded by the development
of responsible government in 1848 and Confederation in 1867; nevertheless, it
remained highly integrated within larger Imperial (namely, British) concepts of
constitutional law until well into the 20th century. Until the 1931 Statute of
Westminster, the British Parliament could legislate with regard to the
dominions and its statutes took precedence over dominion statutes that
were incompatible. Until 1949, the JCPC remained the court of last appeal for
Canada.

Although the colonial structure provided for a measure of political

independence for the dominions, the legal system remained substantially
integrated and hierarchally organized. As noted by Hassard, there were three
great authorities which have power to enact legislation [in Canada]: 1. The
Imperial Parliament, 2. The Canadian Parliament, and 3. The Provincial
Legislatures. The first of these authorities has unlimited powers; while from
it the others derive their entire jurisdiction (Hassard 1900: 68). The unlimited
authority of the Imperial Parliament had been confirmed in Re. Goodhue
(1872), and the British North America Act, 1867, has created authorities
which are empowered to enact laws; and these laws affect the inhabitants of
Canada. But they affect the inhabitants of Canada only in so far as such laws
are not repugnant to any Imperial legislation which has the force of law in
20
Canada(Hassard 1900: 69).

The BNA Act was itself an Act of the Imperial Parliament, and Westminster
reserved the right to legislate in all dominion affairs, although this was
exercised primarily in regards to foreign affairs and defense. Furthermore, the
apex of the Canadian judiciary remained the JCPC in the Westminster House
of Lords. Dominion legislation that was incompatible or repugnant to Imperial
legislation (being legislation passed by the Westminster Parliament that
explicitly extended to the dominions and colonies) could be set aside on the
grounds that it was ultra vires.

In Judicial Review of Legislation in Canada, B.L Strayer argues that

statutory judicial review was not included in the BNA Act, either implicitly or
explicitly, nor could it be found in the British common law system that Canada
inherited. Instead, statutory review is a product of the British colonial system,
implicit in the royal instructions, charters, or Imperial statutes creating the
colonial legislatures. Since these legislatures were bodies of limited power, the
colonial charters establishing them typically included clauses prohibiting them
from passing laws repugnant to Imperial statutes (Strayer 1968: 3; Smith
1983: 116). Although there is no evidence that Canadian courts conducted
judicial review of colonial legislation prior to 1867, Strayer finds that the
judiciary was aware of its power to do so based largely on precedents
established by other colonial courts (Smith, 1983: p.116).

The Imperial structure that persisted after 1867 allowed the judiciary to
conceive of the BNA Act as a piece of primary legislation, and all Canadian
and provincial statutes as secondary legislation enacted by a body with
delegated powers. Accordingly, the BNA Act was considered to be simply

21
another statute of the British Parliament.

Starting in 1878, the newly created Supreme Court of Canada began to

overturn legislation on the grounds that it was ultra vires in regards the
Imperial BNA Act. The BNA Act was imbued with a constitution-like
significance because the Imperial relationship allowed the judiciary to
consider Canadian and provincial statutes as secondary legislation.

Another key factor in the emergence of statutory judicial review in Canada

was federalism. Although federalism in Canada did not lead inevitably to
statutory review, federalism almost certainly leads inevitably to jurisdictional
disputes requiring a formal mechanism of resolution. The abandonment of
disallowance and its replacement with a Supreme Court that could enforce the
hierarchal relations of imperialism was effectively an invitation for statutory
review. Federalism therefore provided an institutional context for the
development of statutory judicial review, with the goal of establishing the
federal government as supreme vis--vis the provinces.

The 1982 Charter of Rights and Freedoms brought with it a vast expansion of
the authority of judicial review, explicitly grounding statutory review in the
constitutional text and expanding its subject matter to include numerous rights
that had been excluded from the BNA Act; it is widely recognized by its
detractors and supporters as having radically altered the constitutional
relationship between the judiciary and the legislatures (Epp 1998: ; Morton and
Knopff 2000: ; Roach 2001).

In essence, it appears that the Canada Supreme Court has adopted an

American-style approach to constitutional interpretation. That is to say, the
contention that the Charter now has the status of a social compact gives

22
the Court a firmer basis to exercise judicial review. The Charter now
operates as a written constitutional text providing certain supreme,
normative legal principles for the organization of government and the
protection of individual liberty.

Somewhat surprisingly, however, the Supreme Court has thus far

eschewed an originalist approach to the interpretation of the Charter.
Instead, it has resorted to a contextual approach in which it emphasises
the historical, social and economic context in which a Charter claim
arises. 59 Such an approach is inconsistent with the traditional concept of
judicial review. After all, if the Charter can truly claim the status of a social
compact justifying its use as a measurement of the peoples will, then courts
must take care to understand the original context and intent of those who
framed the Charter. To do otherwise, means that the court is left to interpret
the text of the Charter in light of their expectations and understandings.

Judicial Review in USA

Article III of the Constitution, a substantial departure from the Articles of
Confederation, created the federal judiciary and defines its powers. The
initial words of Article-III provides that the judicial power of the United
States shall be vested in one Supreme Court and in such inferior Courts as
the Congress may from time to time ordain and establish. Further Article III
59
R. v. Laba, [1994] 3 S.C.R. 965; Edmonton Journal v. Alberta (Attorney General),
[1989] 2 S.C.R. 1326. 4 In re Quebec Secession, [1998], 2 S.C.R. 217.

23
defines the judicial power in terms of nine categories of cases and
controversies. These nine categories fall into two major types of
provisions. One set of clauses authorizes the Federal Courts to vindicate and
enforce the powers of the federal government e.g. federal courts have
authority to decide all cases under the Constitution, treaties and laws of the
United States. Additionally the federal courts have authority to hear all cases
in which the United States is a party. The Federal Governments power in the
area of foreign policy are protected by according the federal courts authority
to hear all cases affecting ambassadors and other public ministers and
consuls; to hear all cases of admiralty and maritime jurisdiction and to hear
cases between a State, or its citizens, and a foreign country, or its citizens. A
second set of provisions authorizes the federal courts to serve an interstate
umpiring function, resolving disputes between states and their citizens. Thus
Article-III gives the federal courts the authority to decide controversies
between two or more sates, between a state and citizens of another state, 60
between citizens of different states, and citizens of the same state claiming
land in other states.

Authority for Judicial Review

Interestingly, Article-III never expressly grants the federal courts the power
to review the constitutionality of federal or state laws or executive actions.
Perhaps the silence reflects the shared understanding that courts possess the
authority for constitutional review and it was thought unnecessary to
60
This provision was essentially overturned by the adoption of eleventh amendment , which provides that
that the judicial power of the Unites States does not extend to cases between a state and citizens of different
state or citizens of foreign nations.

24
enumerate this. Perhaps the silence reflects a failure to consider the issue in
drafting the Constitution or even the assumption that courts would not have
authority. Courts would exist, as is the case in Great Britain, to hear civil and
criminal cases, but not to declare unconstitutional government actions.
However, from the earliest days of the country, the Supreme Court has
claimed the power to review the constitutionality of federal and state laws
and executive actions in Marbury v. Madison.61 Through Martin v.
Hunters Lessee62 and Cohens v. Virginia63 the Supreme Court claimed the
power to review state courts judgments and proceeding. Because of these
decisions, the power of judicial review is firmly established and is an
integral part of American Courts even though it is not expressly authorized
in the text of the Constitution.

Marbury v. Madisaon:
Facts

On his last day in office, President John Adams named forty-two justices of
the peace and sixteen new circuit court justices for the District of Columbia
under the Organic Act. The Organic Act was an attempt by the Federalists to
take control of the federal judiciary before Thomas Jefferson took office.

The commissions were signed by President Adams and sealed by acting

Secretary of State John Marshall (who later became Chief Justice of the
Supreme Court and author of this opinion), but they were not delivered
before the expiration of Adamss term as president. Thomas Jefferson

61
5 U.S.(1 Cranch) 137 (1803).
62
14 U.S. (1 Wheat.) 304 (1816)
63
U.S. (6 Wheat.) 264 (1821)

25
refused to honor the commissions, claiming that they were invalid because
they had not been delivered by the end of Adamss term.

William Marbury (P) was an intended recipient of an appointment as justice

of the peace. Marbury applied directly to the Supreme Court of the United
States for a writ of mandamus to compel Jeffersons Secretary of State,
James Madison (D), to deliver the commissions. The Judiciary Act of 1789
had granted the Supreme Court original jurisdiction to issue writs of
mandamus to any courts appointed, or persons holding office, under the
authority of the United States.

Issues

1. Does Marbury have a right to the commission?

2. Does the law grant Marbury a remedy?
3. Does the Supreme Court have the authority to review acts of Congress
and determine whether they are unconstitutional and therefore void?
4. Can Congress expand the scope of the Supreme Courts original
jurisdiction beyond what is specified in Article III of the Constitution?
5. Does the Supreme Court have original jurisdiction to issue writs of
mandamus?
Holding and Rule (Marshall)

1. Yes. Marbury has a right to the commission.

The order granting the commission takes effect when the Executives
constitutional power of appointment has been exercised, and the power
has been exercised when the last act required from the person possessing

26
 the power has been performed. The grant of the commission to Marbury
became effective when signed by President Adams.
2. Yes. The law grants Marbury a remedy. The very essence of civil
liberty certainly consists in the right of every individual to claim the
protection of the laws whenever he receives an injury. One of the first
duties of government is to afford that protection.

Where a specific duty is assigned by law, and individual rights depend

upon the performance of that duty, the individual who considers
himself injured has a right to resort to the law for a remedy. The
President, by signing the commission, appointed Marbury a justice of
the peace in the District of Columbia. The seal of the United States,
affixed thereto by the Secretary of State, is conclusive testimony of the
verity of the signature, and of the completion of the appointment.
Having this legal right to the office, he has a consequent right to the
commission, a refusal to deliver which is a plain violation of that right
for which the laws of the country afford him a remedy.
3. Yes. The Supreme Court has the authority to review acts of Congress
and determine whether they are unconstitutional and therefore void.

It is emphatically the 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 the rule. If two laws conflict with each other, the
Court must decide on the operation of each. If courts are to regard the
Constitution, and the Constitution is superior to any ordinary act of the
legislature, the Constitution, and not such ordinary act, must govern the
case to which they both apply.
27
4. No. Congress cannot expand the scope of the Supreme Courts
original jurisdiction beyond what is specified in Article III of the
Constitution.

The Constitution states that the Supreme Court shall have original
jurisdiction in all cases affecting ambassadors, other public ministers
and consuls, and those in which a state shall be a party. In all other
cases, the Supreme Court shall have appellate jurisdiction. If it had
been intended to leave it in the discretion of the Legislature to apportion
the judicial power between the Supreme and inferior courts according to
the will of that body, this section is mere surplusage and is entirely
without meaning. If Congress remains at liberty to give this court
appellate jurisdiction where the Constitution has declared their
jurisdiction shall be original, and original jurisdiction where the
Constitution has declared it shall be appellate, the distribution of
jurisdiction made in the Constitution, is form without substance.
5. No. The Supreme Court does not have original jurisdiction to issue
writs of mandamus.
To enable this court then to issue a mandamus, it must be shown to be an
exercise of appellate jurisdiction, or to be necessary to enable them to
exercise appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and
corrects the proceedings in a cause already instituted, and does not
create that case. Although, therefore, a mandamus may be directed to
courts, yet to issue such a writ to an officer for the delivery of a paper is,
in effect, the same as to sustain an original action for that paper, and is
therefore a matter of original jurisdiction.
28
Disposition

Application for writ of mandamus denied. Marbury doesnt get the

commission.

Limitations on Judicial Review:

The most important limits on the federal judicial power are imposed by a
series of principles which are judicially created and termed as justiciability
doctrines. These justiciability doctrines determine which federal courts can
hear and decide and which must be dismissed. The Supreme Court has
distinguished two different sources for these rules. First, the court has
declared that some of the justiciability doctrines are a result of its
interpretation of Article-III of the United States Constitution. The Supreme
Court has said that the requirements for cases and controversies imposes
substantial constitutional limits on federal judicial power. Second, the court
has said that other justiciability doctrines are derived not form the
Constitution, but from prudent judicial administration. These justiciability
doctrines are termed prudential
The distinction between constitutional and prudential limits on federal
judicial power is important because Congress, by statute, may override
prudential, but not constitutional, restrictions. Because Congress may not
expand federal judicial power beyond what is authorized in Article-III of the
Constitution, a constitutional limit on federal judicial power may not be
changed by federal law. But since prudential constraints are not derived from

29
the Constitution, Congress may instruct the federal courts to disregard such a
restriction.64

1. The Prohibition against Advisory Opinions:

The core of Article IIIs limitation on federal judicial power is that federal
courts can not issue advisory opinions. In many states, state courts are
authorized to provide opinions about the constitutionality of pending
legislation or on constitutional questions referred to them by other branches
of government65. Such advisory opinions are in many ways beneficial. By
providing guidance to the legislature, these rulings can prevent the
enactment of unconstitutional laws. Also, an advisory opinion can spare a
legislature the effort of adopting statutes soon to be invalidated by the courts
and can save time by allowing the legislature to correct constitutional
infirmities at the earliest possible time. The Court explained in Flast v.
Cohen: The implicit policies embodied in Article-III, and not history alone,
impose the rule against advisory opinions. The rule implements the
separation of powers and also recognizes that such suits often are not
pressed before the court with that clear correctness provided when a
question emerges precisely framed and necessary for decision from a clash
of adversary argument exploring every aspect of a multifaceted situation
embracing conflicting and demanding interests.66
In order for a case to be justiciable and not an advisory opinion, two
requirements must be met. First, there must be an actual dispute between
adverse litigants.67 Second, in order to be justiciable and not an advisory
64
Warth v. Seldin 422 U.S. 490, 501 (1975)
65
States permitting advisory opinions include Colorado, Florida, Maine, Massachusetts, New Hampshire,
Rhode Island, and South Dakota.
66
392 U.S. 83, 96-97 (1968)
67
See H.Hart et al. (conversation between Jefferson and Supreme Court).

30
opinion, there must be a substantial likelihood that a federal court decision
in favour a claimant will bring about some change or have some effect.68

2. Standing:
Standing is the determination of whether a specific person is the proper party
to bring a matter to the court for adjudication. The Supreme Court has
declared that in essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particular
issues.69
The Supreme Court has announced several requirements for standing, all of
which must be met in order for a federal court to adjudicate a case. The
Supreme Court has identified three constitutional standing requirements.
First, the plaintiff must allege that the he or she has suffered or imminently
will suffer an injury. Second, the plaintiff must allege that the injury is fairly
traceable to the defendants conduct. Third, the plaintiff must allege that a
favorable federal court decision is likely to redress the injury.
There are some benefits of standing doctrine also. First, the standing
doctrine promotes separation of power by restricting the availability of
judicial review. In Alien v. Wright, the Supreme Court has declared that
standing is built on a single basic idea --- the idea of separation of powers.70
Secondly, standing is said to serve judicial efficiency by preventing a flood
of lawsuits by those who have only an ideological stake in the outcome.71
Third, standing is said to improve judicial decision making by ensuring that
there is a specific controversy before the court and that there is an advocate
68
Hayburns case 2 U.S. (2 Call.) 409 (1792)
69
Warth v. Seldin, 422 U.S. 490, 498 (1975)
70
468 U.S. 737, 752 (1984), see also Lewis v. Casey, 518 U.S. 343, 353 (1966)
71
United States v. Richardson, 418 U.S. Stan. L. Rev. 227 (1990)

31
with a sufficient personal concern to effectively litigate the matter. Fourth,
standing requirements are said to serve the value of fairness by ensuring that
people will raise only their rights and concerns and that people can not
intermeddlers trying to protect others who do not want the protection
offered.

3. Ripeness:
The ripeness doctrine seeks to separate matters that are premature for
review, because the injury is speculative and never may occur, from those
cases that are appropriate for federal court action.72 In the leading case of
Abbott Laboratories v .Gardner, the court explained that the basic
rationale of the ripeness requirement is to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements.73 The ripeness doctrine, limiting preenforcement review,
serves many of the purposes underlying the other justiciability doctrines.
Ripeness advances separation of powers by avoiding judicial review in
situations where it is necessary for the federal courts to become involved
because there is not a substantial hardship to postponing review.
An examination of Supreme Court ripeness decisions reveals three situations
in which the court has found there to be enough hardship to justify
preenforcement review. First, when an individual is faced with a choice
between forgoing allegedly lawful behaviour and risking likely prosecution
with substantial consequences, the federal courts will deem the case ripe
rather than insist that an individual violate the law ands risk the

72
Abbott Laboratories v .Gardner, 387 U.S. 136, 148 (1967)
73
387 U.S. 136, 148 (1967)

32
consequences. A second situation in which the court has found substantial
hardship is where the enforcement of a statute or regulation is certain and the
only impediment to ripeness is simply a delay before the proceedings
commence. Where the application of a law is inevitable and consequences
attach to it, the court will find the matter ripe before the actual proceeding
occurs. A third way in which the court has found substantial hardship is
based on collateral injuries that are not the primary focus of the lawsuits.
4. Mootness:
An actual controversy must exist at all stages of federal court proceedings, at
both the trial and the appellate levels. If events subsequent to the filing of
the case resolve dispute, the case should be dismissed as moot. The Supreme
Court, quoting Professor Henry Monaghan, explained that mootness is the
doctrine of standing in a time frame. The requisite personal interest that
must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).74
Many different types of events might render a case moot. For example, a
case is moot if a criminal defendant dies during the appeals process or if a
civil plaintiff dies where the cause of action does not survive death. 75 Also, if
the parties settle the matter, a live controversy obviously no longer exists. 76
If a challenged law is repealed or expires, the case is moot. 77 Essentially, any
change in the facts that ends the controversy renders the case moot.

5. The Political Question Doctrine:

The Supreme Court has held that certain allegations of unconstitutional
government conduct should not be ruled on by the federal courts even
74
United States Parole Commn. V. Geraghty, 445 U.S. 388, 397 (1980)
75
Dove v. United States, 423 U.S. 325 (1976)
76
United Airlines, Inc. v. McDonald, 432 U.S. 385, 400 (1977)
77
Burke v. Barens,479 U.S. 361, 365 (1987)

33
though all of the jurisdictional and other justiciability requirements are met.
The court has said that constitutional interpretation in these areas should be
left to the politically accountable branches of government, the president and
the congress. In other words, the political question doctrine refers to
subject matter that the court deems to be inappropriate for judicial review.
Although there is an allegation that the constitution has been violated, the
federal courts refuse to rule and instead dismiss the case, leaving the
constitutional question to be resolved in the political process.
The political question doctrine can be understood only by examining the
specific areas where the Supreme Court has invoked it. Specifically, the
court has considered the political question doctrine in the following areas:
the republican form of government clause and the electoral process, foreign
affairs, Congresss ability to regulate its internal processes, the processes for
ratifying constitutional amendments, instances where the federal court can
not shape effective equitable relief, and the impeachment process.

6. Congressional Control of Federal Court Jurisdiction:

The question of congressional power to restrict federal court jurisdiction
might arise in the particularly compelling and controversial circumstances of
whether Congress may deny the federal courts power to hear specific types
of cases.
The obvious purpose of most jurisdiction stripping bills is to achieve a
change in the substantive law by a procedural device. Opponents of the
Supreme Courts decisions in controversial areas such as abortion, school
prayers, loyalty oaths and criminal procedure would prefer to overturn the
rulings by enacting constitutional amendments.
34
Congresss authority to prevent Supreme Court review of cases involving
topics such as abortion is based on the language of Article-III, which
provides that the Supreme Court shall have jurisdiction, both as to law and
fact, with such exceptions, and under such regulations as the congress shall
make. The claim is that the unambiguous language of Article-III authorizes
the Congress to create exceptions to the Supreme Courts jurisdiction and
that such exceptions include the ability to preclude review of particular
topics, such as abortion or school prayer cases. Supporters of jurisdiction
stripping proposals bolster their textual argument by claiming that the
framers of the Constitution intended such congressional control as a check
on the judiciarys power.

7. Sovereign Immunity as a limit on the Federal Judicial Power:

A major limit on the federal judicial power- and now on the authority of
state courts as well--- is the doctrine of sovereign immunity. Sovereign
immunity in the federal courts is based on the Supreme Courts
interpretation of the Eleventh Amendment. The eleventh amendment states,
The judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by citizens or subjects of any
foreign State. As interpreted, the eleventh amendment prohibits suits in
federal courts against State Governments in law, equity, or admiralty, by a
states own citizens, by citizens of another state, or by citizens of foreign
countries. Additionally, the Supreme Court has recently held that sovereign
immunity bars suits against state governments in State court without their
consent.78 The court thus has ruled that there is a broad principle of
78
Alden v. Maine, 527 U.S. 706

35
sovereign immunity that applies in both federal and state courts. As Justice
Kennedy, writing for the court in Alden v. Maine, declared: Sovereign
immunity is derived not form eleventh amendment but form the structure of
the original Constitution itself.79

Judicial Review in India

Judicial review in India comprises three aspects (1) judicial review of
legislative action, (2) judicial review of judicial decision, (3) judicial review
of administrative action.80
Judicial review stands on a more solid basis in our country than in the
United States. It stands on a more solid footing because it is not based on
any judicial dogma but is provided for by the Constitution itself.
Constitution has several express provisions empowering the courts to
declare a law to be void when it offends against the fundamental rights (Art.
13) or the federal distribution of powers (Art. 254). That the power to
declare a statute to be unconstitutional will belong to the judiciary is next
made clear by providing in Art. 367 that the Constitution is to be interpreted
as a legal instrument and that question as to interpretation of the Constitution
will be dealt with by the High Court at the primary level and then by the
Supreme Court on appeal (Art. 226, 228 & 132). A petition for the same
purpose, on the ground of contravention of fundamental rights can also be
directly brought before the Supreme Court under Art. 32. The interpretation
given by the Supreme Court under any of the forgoing provisions is, above

79
Id. at 2254
80
L. Chandra Kumar v. Union of India, AIR 1997 SC 3616

36
all, given finality and made binding upon all other authorities in India by the
provisions in Art. 141(with respect to all courts within the territory of India)
and Art. 144(with respect to all other civil authorities).
But it can not be said that the scope of the judicial review is confined to the
extent of Art. 13(2) or Art. 254(1) because it has already been made clear as
early in Gopalans81 case by Kania C.J.,
The inclusion of Art.13 (1) & (2) in the Constitution appears to be a matter
of abundant caution. Even in their absence, if any of the fundamental rights
was infringed by any legislative enactment, the Court has always the power
to declare the enactment; to the extent it transgresses the limits, invalid..
Judicial review, in India, thus is not dependent upon the express provisions
in Art.13 nor is its ambit restricted to the sphere of fundamental rights which
referred to in Art.13. It extends to the entire length and breadth of the
Constitution subject only to two conditions, namely, that the provisions of
the Constitution which is sought to be enforced by the court against the
legislature must be justiciable and not excluded by any provision of the
Constitution itself.
The Supreme Court stated in State of Madras v. Row82, that the Constitution
contains express provisions for judicial review of legislation as to its
conformity with the Constitution and that the Courts face up to such
important and none too easy task not out of any desire to tilt at legislative
authority in a crusaders spirit, but in discharge of a duty plainly laid upon
them by the Constitution.
Further RamaSwami J. in S.S. Bola v. B.D. Sharma83, justifying judicial
review, observed: the founding fathers very wisely, therefore, incorporated
81
A.K. Gopalan v. State of Madras (1950) SCR 88 (100).
82
AIR 1952 SC 196, 199.
83
AIR 1997 SC 1361

37
in the Constitution itself the provisions of judicial review so as to maintain
the balance of federalism, to protect the fundamental rights and fundamental
freedoms guaranteed to the citizens and to afford a useful weapon for
availability, availment and enjoyment of equality, liberty and fundamental
freedoms and to help to create a healthy nationalism. The function of judicial
review is a part of the constitutional interpretation itself. It adjusts the
constitution to meet new conditions and needs of the time.

Courts which may determine the Constitutionality of a law and forms of

review:
Our Constitution envisages that only two courts shall be competent to
determine the constitutionality of laws namely, the Supreme Court and the
High Court of a State, by issuing constitutional remedy.
In India, the instrumentalities of judicial review are of two kinds---
(a) Those founded on the ordinary law, such as a declaratory action, which is
governed by Sec.34 of the Specific Relief Act, 1963.
(b) Those provide by the Constitution, e.g. the writ jurisdiction under Art.32
and 226; appeals under Art.132 (1), 136.
It would be convenient to discuss these different powers of judicial review
of constitutionality with reference to courts which are entitled to exercise
them.

(A) High Court:

The proceedings in which a High Court may have an opportunity of
determining the constitutionality of a law are two folds-
(a) Proceedings under the ordinary law;
38
(b) Proceedings by the constitution itself.
(a) Under the ordinary law:
(i) The party affected by the law may bring a suit for a declaration 84 that the
law is unconstitutional, in the High Court itself (in its original side, where
such jurisdiction exists).
(ii) Apart from a direct suit for declaration of unconstitutionality of a
statute, a High Court may be called upon to determine such question when
the defendant or the appellant in any proceeding or appeal challenges the
constitutional validity of the statute on which the party relies. Thus, in a
criminal appeal, the appellant contend that the statute which created the
offence or the tribunal which tried the appellant or sanctioned the procedure
for trial, is unconstitutional. If such a question is raised, the High Court is
bound to determine it if it is necessary for the disposal the case and from the
decision of the High Court (If constitutional question is decided), appeal lies
to the Supreme Court under Art. 132.
(iii) When a case is stated by a subordinate Court under Sec.113 of the Code
of Civil Procedure and Sec.432 of the Code of Criminal Procedure.
(b) Under the Constitution:
(i) Application under Art.226:
The aggrieved party may bring an application for the issue of an appropriate
writ under Art.226, upon the finding that the statute is unconstitutional. Writ
of habeas corpus, mandamus, prohibition and certiorari can be issued for the
purpose of enforcement of the fundamental rights as well as for any other
purpose for which such writs are available at Common Law.
Hence-

84
Dwarkadas v .Sholapur Spinning Co. (1954) SCR 674 (717)

39
(i) When a person is arrested or detained, he may, in a petition for habeas
corpus, challenge the constitutionality of the law under which he has been
arrested or detained, on the ground of the contravention of fundamental
rights, want of legislative competence and the like.
(ii) Where the executive seeks to enforce a law against an individual say,
affecting his rights, he may move for a writ of mandamus to restrain the
government or other executive authority concerned from enforcing the law,
upon a finding that the law is unconstitutional.
(iii) Where a quasi judicial tribunal proceeds to act under a law which is
alleged to be unconstitutional, the aggrieved party may apply for a writ of
prohibition to prohibit a tribunal from proceeding further; or if the tribunal
has already given its decision, the party may move for a writ of certiorari to
quash the decision of the tribunal.
(ii) Proceeding under Art. 228:
If either party to a suit or proceedings in a court subordinate to the high court
has impugned the validity of the law upon which the rights of the parties in
the suit or proceeding depend, the High Court shall withdraw such suit or
proceeding to itself under Art.228, if it finds that the suit or proceeding can
not be disposed of without determining the constitutionality of the law.
The object of this Art.228 is to make the High Court the sole interpreter of
the Constitution in a State and to deny the subordinate courts a right to
interpret the Constitution, for the sake of attaining some degree of
uniformity as regards constitutional decisions.
The legislature has since supplemented the provisions of the Constitution to
ensure that a subordinate court shall have no power to invalidate a law, and
to lay down, expressly, the duty of such court when a question of such
invalidity arises in any civil or criminal case pending before it. The Code of
40
Civil and Criminal Procedure (Amendment) Act, (24 of 1951) has amended
Sec.113 of C.P.C. and Sec. 432 of Cr.P.C. to provide that where any civil or
criminal case pending before a subordinate court involves a question as to
the validity of any Act, ordinance, or regulation or of any provision
contained therein, the court must state a case setting out its opinion and refer
the same for the opinion o the High Court. It may act suo motto or even on
an application.
(B) Supreme Court:

Constitutional questions may come before the Supreme Court in any o the
following ways-
(i) By application under Art.32.
(ii) By suit under the original jurisdiction of the Supreme Court under
Art.131.
(iii) On appeal from a High Court under Art.132, 133 or 134.
(iv) On appeal form any Court or tribunal by special leave of the
Supreme Court under Art.136.

Limitation on Judicial Review:

If the instrument of the judicial review were to be used indiscriminately, the
courts could very well paralyze the entire government system in no time. 85
For the very end that government may function at all, some limits must,
therefore be necessarily imposed on the power of judicial review.
These limits may be said to be three fold: (i) constitutional; (ii) intrinsic; and
(iii) self imposed.
(i) Constitutional Limitations:
85
Cf. Restue Army v. Municipal Court, (1947) 311 US 549

41
There are certain provisions of the Constitution which expressly bar judicial
review of legislation:
1) Art.100 (2) and 189(2): cl (2) of Art. 100 and 189 bar the jurisdiction
of the courts to invalidate the proceedings of a House of the
Legislature on the ground-
a) That there was a vacancy in the membership of the legislature
at the relevant time; or
b) That a disqualified person had sat in the House, voted or
otherwise took part in the relevant proceedings.
2) Art. 122(1) and 212(1): Clauses (1) of Art. 122 and 212 relate to a
challenge against the validity of any proceedings on the ground of
irregularity of procedure. Recently the Supreme Court had
occasion to consider the scope of privilege and ouster of judicial
review regarding parliamentary proceedings in Raja Ram Pal v. The
Hoble Speaker, Lok Sabha.86 Detailed guidelines were laid down in
this case some which are as follows:
a) Having regard to the function discharged by the legislatures under the
Constitution and the majesty and grandeur of its task, there would
always be a presumption that the powers, privileges etc. have been
regularly and reasonably exercised, not violating the law or the
constitutional provisions, the presumption being rebuttable one.
b) The fact that the Parliament is an august body of co-ordinate
constitutional position does not mean that there can be no judicially
manageable standards to review exercise of its power.
c) While the area of powers, privileges and immunities of the legislative
being exceptional and extraordinary, its acts, particularly relating to
86
JT (2007) 2 SC 1.

42
 exercise thereof ought not to be listed on traditional parameters of
judicial review in the same manner as an ordinary administrative
action, would be tested and the Court would confine itself to the
acknowledged parameters of judicial review and within judicially
discoverable and manageable standards, there is no foundation to the
plea that a legislative body can not be attributed jurisdictional error.
d) The truth or the correctness of the material will not be questioned by
the court nor will it go into the adequacy of the material or substitute
its opinion for that of legislature.
3) Art. 329 (a): Clause (a) of Art. 329 bars judicial review of laws
made in exercise of the powers conferred by Art. 327-8, under Entry
72 of List I or 37 of List II, e.g., dealing with the manner of holding
election, preparation of electoral rolls, delimitation of constituencies.87
(ii)Intrinsic Limitations:
In Anglo-Saxon jurisprudence, there is a common law relating to the
judicial function itself and whenever that system has been introduced, judges
in any country never transgressed that common law. These rules (limitations)
as to the judicial functions are
a. The function of the court is not to legislate; they only decide cases or
disputes between adversaries, presented as such before them.88
b. The wisdom of the policy behind a statute is not concern of the
judges, and reform of the law is a function of Legislature, not of the
judges.89
c. The courts function is to invalidate a law or subordinate legislation
on the ground of unconstitutionality, but it can not assume the role of
87
Meghraj v. Delimitation Commn., AIR 1967 SC 669(675).
88
Muskrat v. U.S. (1911) 219 US 345.
89
Cheney v. Conn., (1968) 1 WLR 242.

43
 an appellate authority,90 e.g. by itself reframing the impugned law or
to direct the legislative authority to remake the law as directed by the
court.
d. The courts are concerned only with the presence or absence of
legislative power when the constitutionality of a statute is challenged,
the court will not strike it down on the ground that the legislature has
exercised its lawful power for an unlawful purpose, or acted upon an
improper or illicit motive.91

(iii) Self imposed Limitations:

As Justice Stone said: the power of Courts to declare a law
unconstitutional is subject to two guiding principles of decision which
ought never to be absent from judicial consciousness. One is that
courts are concerned only with the power to enact statutes, not with
their wisdom. The other is that while unconstitutional exercise of the
power by the executive is subject to judicial restraint, the only check
upon own exercise of power is our sense of self restraint. For the
removal of unwise laws from the statute books appeal lies not to the
courts but to the ballot and to the processes of democratic
government Courts are not only agency of government that must be
assumed to have the capacity to govern. Congress and the courts both

90
Chandigarh Admn. V. Manpreet, (1992) 1 SCC 380 Paras. 17,21.
91
U.S. v. OBrien, (1968) 391 US 367 (683).

44
 unhappily may falter or to be mistaken in the performance of their
constitutional duty.92
Our Supreme Court has also developed some self restraints in the
exercise of the power of judicial review following the American
model. Some of the substantial limitations are as follows:

1. The question must be raised in adversary litigation.

In India, though hardly any cases of a collusive proceedings to challenge the
constitutionality of a law has so far come up to the Supreme Court, the
principle that the Court will not examine the constitutionality of a law except
where there is a litigable dispute between two parties depending upon such
law will follow from the principle already laid down by the Supreme Court
in Dwarka Das v. Sholapur Spinninig &Weaving Co 93., namely, that only a
person who is directly affected by a law can challenge the validity of that
law and that a person whose own right or interest has not been violated or
threatened can not impugn the law

2. The controversy must be real.

The Court in general will not proceed with a writ petition which has become
infructuous e.g. when the impugned statute is replaced during the pendency
of the proceedings challenging the constitutionality; the court will not enter
into the question idle question of the constitutionality of the repealed statute.

3. The question must not be hypothetical.

92
U.S. v. Bulter, (1926) 297 US 1 (78) (dissenting).
93
(1954) SCR 674 (721-2).

45
On this principle, the Court refused to determine the constitutionality of a
law or that part94 of a law, which has not yet been brought into force. But
where some part of an Act has been brought into force, the court may
determine the constitutionality of that part.95 Similarly the Court will not
determine the constitutionality of a statute where the petition under Art.32 or
226 is premature.96

4. The Court will not entertain a challenge to the

constitutionality of a law unless the constitutional question
involved is substantial.
This condition is expressly provided in Art.132 (1) of the Constitution. It
was held that the principle underlying this Article is that the final authority
of interpreting the constitution must rest in the constitution. With that object
the article is freed from other limitations imposed under Articles 133 and
134 and the right of the widest amplitude is allowed irrespective of the
nature of the proceedings in a case involving only a substantial question of
law as to the interpretation of the Constitution. 97 It is interesting to note that
the word substantial has been interpreted in the same way as in the United
States. Thus a question which has been settled by the previous decisions of
the Supreme Court is not a substantial question.98 But it was further held
that the word substantial means a question regarding which there is a
difference of opinion.

94
Chandershekher v. State of Orissa, AIR 1972 SC 486
95
Mussaliar v. Potti, (1955) 2 SCR 1196
96
CF. Kunda v. Soman, AIR 1980 SC 881
97
State of Jammu and Kashmir v. Ganga Singh, AIR 1960 SC 356.
98
CF. Krishnaswami v. Governer Genenral , AIR 1947 F.C.37

46
 5. The question of constitutionality will be determined in the
last resort.
Whenever the question of constitutionality of law is raised, the court will
first see whether (a) the impugned provision is at all attracted to the facts
of the case, and so, (b) whether the case can be disposed of on grounds
other than the constitutionality of the statute.99
The basic principle of statutory construction is that the Court should try
to ascertain the intention of the legislature or the object behind the statute
and then to adopt, if possible, such construction as will carry out the
intention of the legislature and not which would defeat the very object of
the statute.100 It is also known as the principle of avoidance of absurdity.
The principle is in fact a corollary from the maxim ut res magis valeat
quam pereat, which applies to all written instruments and means that a
liberal construction should be put down written instruments, so as to
uphold them, if possible, and carry into effect the intention of the
parties.101

6. The Court will not go beyond what is necessary for the

disposal of the case.
In Atiabari Tea Co. v. State of Assam, Gajendragdkar J. observed- .
In dealing with constitutional question courts should be slow to embark
upon an unnecessarily wide or general inquiry and should confine their
decision as far as may be reasonably practicable within the narrow limits of
the controversy arising between the parties in the particular case.

99
State of Bihar v. Hurdut Mills, AIR 1960 SC 378.
100
Miller v. Salomans, (1852) 7 Ex. 475.
101
Shannon Realties v. St. Michel, (1924) AC 185 (192).

47
The above principle is adhered to even though it may lead to a multiplicity
of proceedings.

7. The petitioner must have a locus standi or standing.

(i) No one but whose rights are directly affected by a law can raise
the question of constitutionality of that law.102
(ii) An exception to the preceding proposition is acknowledged in
the case of a petition for the writ of habeas corpus, out of
necessity.103
(iii) Another exception appears to have been acknowledged where a
statue affects the rights arising under a contract. In such a case,
even though the rights of one party to the contract are primarily
and directly interfered with by the impugned statute, since the
contract gives rise to mutual rights and obligations, the other party
to the contract may also seek a declaration as to the
constitutionality of the statute; for, if the latter does any act in
pursuance of the statute, the former may challenge the
constitutionality of the statute and insist on his contractual rights.104
(iv) A person who challenges the constitutionality of a statute must
show that he has sustained or is immediately in danger of
sustaining some direct injury as the result of enforcement of the
statute and that the injury complained of is justificiable.105
Apart from the concept of public interest litigation, the Supreme Court has
liberalized the traditional rule of locus standi, by enlarging the scope of the
concept of person aggrieved or person interested by introducing the
102
Chiranjitlal v. Union of India, (1950) SCR 869.
103
Rao Bahadur v. State of V.P. (1953) SCR 1188.
104
Bombay Dyeing v. State of Bombay, AIR 1958 SC 328 (339).
105
Dwarka Das v. Sholapur Spinnning Co. (1954) SCR 674(712).

48
proposition that every citizen, other than an officious busy body, must be
held to have an interest in the removal of a public grievance, even though he
may not have a direct or special interest therein 106 e.g., an individual worker
in an industry to challenge a mismanagement of that industry in the public
sector107, or an MLA, who seeks to prevent destruction of the forest wealth,
in the interest of the environment and ecology108, even though the petition
may not have been leveled as a Public Interest Litigation.109
8. Whether the Court may deliver an advisory opinion.
The general principle applied in India as to judicial review of legislation is
that the court may invalidate a law only if a dispute about its
constitutionality is raised between two parties where the law is otherwise
applicable. It is on this principle that the court, though having a duty to
enforce Fundamental Rights, would not answer a hypothetical110 or academic
question which does not arise from the lis between the parties unless the
State presses for a decision on the correct legal position even though the
petitioner would not get any relief.111 Of course, in India, the Supreme Court
has an advisory jurisdiction under Art.143 of the Constitution, but in that
jurisdiction, the court does not possess the power of judicial review that is,
to annul a law which has already been enacted, on the ground of
unconstitutionality. Under Art.143, the court can give its opinion as to
unconstitutionality and that too only if the President asks for it. It is not a
judgment inter partes and not be executed as such.
Under clause (1) of Art.143, the Supreme Court has discretion in the matter
of giving an opinion and May in a proper case and for good reasons decline
106
Fertilizers Corpn. V. Union of India, AIR 1981 SC 344.
107
Jasbhai v. Roshan, AIR 1976 SC 578.
108
Cf. State of H.P. v. Ganesh, (1996) 6 SCC 363.
109
Sub Committee v. Union of India, (1991) 4 SCC 699.
110
Sanjeev Coke v. Bharat Coking, AIR 1983 SC 239.
111
State of Gujarat v. Mehbub, AIR 1968 SC 1468.

49
to express any opinion on the question submitted to it. 112 Even in matters
coming under Art.143 (2), the Supreme Court may decline and return the
reference unanswered for valid reasons.113
Supreme Court has recently stated that it is well within its jurisdiction to
answer/advise the President in a reference made under Art.143 (1) of the
Constitution of India if the question referred are likely to arise in future or
such questions are of public importance or there is no decision of the
Supreme Court which has already decided the question referred.114

Conclusion:
By the above discussion, we see how important the institution of judicial
review in a democracy and in regime of the constitutional government. That
is why the Supreme Court in Kesavananda115 declared judicial review as the
basic feature of the constitution by emphasizing: 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 those rights are not contravenedjudicial review
has thus become an integral part of the constitutional system.
And in Sampat Kumar,116 Bhagwati obversed: judicial review is a basic and
essential feature of the constitution and no law passed by Parliament in
exercise of its constituent power can abrogate it or take it away. If the power
of judicial review is abrogated or taken away the constitution will cease to
be what it is.

112
Kerella Education Bill AIR 1958 SC 956.
113
Special Courts Bill 1978 In Re., AIR 1979 SC 478.
114
Gujarat Assembly Election Matter- Special Reference 1 of 2002, AIR 2003 SC 87.
115
AIR 1973 SC 1461
116
AIR 1987 SC 386.

50
Hence it can be appreciated that protection of the institution of judicial
review is currently inter connected with the protection of fundamental rights,
for depriving the Court of its powers of judicial review would be tantamount
to making fundamental rights non-enforceable, a mere adornment, as they
will become rights without remedy. In the absence of judicial review, the
written constitution will be reduced to collection of platitudes without any
binding force.

Bibliography

Basu D.D., Comparative Constitution, 2nd edn. 2007.

Basus D.D., commentary on the constitution of India, vol. (iv) 2008.
Basus D.D. select Constitution of the world, 4th edn. 2009.

Blackstone, commentaries vol 1.

Datar P Arvind on the Constitution of India, 2nd edn. Rep. 2010.
DR. Dhamija Ashok : Need to Amend a Constitution and Doctrine of
Basic Features, edn. 2007.
Garner, Introduction to Political Science,
Jain M.P., Indian Constitutional Law, 6th edn. 2010.

Massy on American constitution law- power and liberties, 2 nd edn.

2005, separation of powers.
51
 Montesquieu, L Esprit des Lois (Sprit of law), 1748
Pyle world constitution.
Wilson Woodrow, Constitutional Government in the US., (1908)
Yale Law Journal

Source of Information:
Library of Jamia Millia Islamia, Department as well as Central. New
Delhi.
Library of Indian Law Institute. New Delhi.
Digital Library of Delhi University. Delhi
Online Library of Toronto University, Canada.
Library of CCS University, Department as well as Central. Meerut
City.
Internet / Google
http://en.wikipedia.org/wiki/Judicial_review

52