America is the classic home of judicial review. It was an extra constitutional growth in America. In the famous case of Marbury vs. Madison (1803) Chief Justice John Marshall of the United States emphatically pronounced the power of the Court to declare the act of the legislature as ultra vires.
Marshall claimed this power of the Court from famous clause of “Due Process of Law” of the American Constitution. One of the Bills Of Rights in the American Constitution is that “No person shall be deprived of his life, liberty and property without due process of law”.
American Jurists claim that Law in this Clause is akin to “Natural Law”. According to Daniel Webster the meaning of “Due Process of Law” is that “Every citizen shall hold his life, liberty, property and immunities for the protection of general laws which govern society”.
“Due” in this clause has been taken to mean “What is just and proper” and “Law” as “Natural Law”. Thus the Judicial Review in the American Constitution has two aspects, namely, procedural and Substantive. The Supreme Court can challenge an
Act if either its procedure is defective or the substance contained in it is against the canons of the natural law or natural justice.
There is no judicial review in England. England has an unwritten Constitution. There is absolute supremacy of the Parliament. The Chief Legislators and Chief Executives are combined and the Cabinet headed by the Prime Minister brings complete co-ordination between the legislation and administration. Hence judicial review is not necessary.
The power of judicial review is explicit in the Constitution of India. Further, the scope of judicial review in India is not as wide as that of the United States of America. The scope of judicial review is comparatively limited in India because of the fact that the Constitution of India is the longest written Constitution in the world. All provisions including the distribution of powers between the Union and the States have been elaborately enumerated.
The enumeration of Fundamental Rights along with its limitations in detail has also restricted the scope of judicial review in India. Further, there is a vital distinction between the two clauses contained in the respective Constitutions, namely, “Due Process of Law” of the American Constitution and “Procedure established by Law” of the Indian Constitution.
Article 21 of the Constitution provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. The word “law” in the clause “procedure established by law” does not mean natural law but it implies State made law.
If the State makes law through which life or personal liberty of the citizen is deprived of the Supreme Court cannot question it on the ground of natural law or natural justice. The Court can only question the procedure through which the person is deprived of his life or personal liberty.
The Supreme Court of India in the famous case of A. K. Gopalan vs. State of Madras (1950) accepted its own limitations. It decided that the “Procedure established by Law” is not same as “Due Process of Law” of the American Constitution and by adopting that phrase, the Constitution-makers of India gave the Legislature the final word to determine law.
Thus the reasonableness of law cannot be questioned in India by the Supreme Court on substantive grounds. Only the procedural aspect of the judicial review is found in the Indian Constitution but not that of its substantive aspect. Further, the
Supreme Court can declare any legislation in toto as ultra vires if it goes against any provision of the Constitution. It can declare any act of the Legislature or the Executive as unconstitutional if it violates any of the Fundamental Rights guaranteed under the Constitution. Justice B. K. Mukherjee correctly assessed the position of our Supreme Court in the following words:-
“In India it is the Constitution that is Supreme and Parliament as well as Stale legislatures must not only act within the limits of their respective legislative spheres as demarcated in the three lists occurring in the Seventh Schedule of the Constitution, but Part 111 of the Constitution guarantees to the citizen certain fundamental rights which the legislative authority can on no account transgress.
A statute or law to be valid must, in all cases, be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not”.