‘Judicial Review in Constitutional Democracies: A Comparative

Analysis of the U.S., India, and South Africa’

Submitted by

Abhiroop Singh

DIVISION: A PRN: 19010224002 Course: BBA.LLB

2019-24

Symbiosis Law School, NOIDA

Constituent of Symbiosis International (Deemed University) (Established

under Section 3 of the UGC Act, 1956) Re-accredited by NAAC with 'A'
grade (3.58/4) | Awarded Category - 1 by UGC

in

February, 2024 for Academic Year 2023-24 (Semester X )

under the guidance of

Mr. Arun Wighmal

Course in charge – Judicial Process and Judicial Services

Symbiosis Law School, NOIDA

47/48, Phase 2, Industrial Area, Sector 62, NOIDA, Uttar Pradesh 201309
 Judicial Review in Constitutional Democracies: A
Comparative Analysis of the U.S., India, and
South Africa

INTRODUCTION:
As a law student delving into the complexities of constitutional law, the
concept of judicial review in constitutional democracies serves as a
cornerstone in understanding the balance of power, the rule of law, and
the protection of individual rights. In this comparative analysis, we
explore the judicial review mechanisms employed by three prominent
constitutional democracies: the United States, India, and South Africa.

1. Introduction to Judicial Review:

The ability of courts to assess legislative, executive, and administrative
activities to make sure they comply with the constitution is known as
judicial review. It is an essential component of democracies based on the
constitution, guaranteeing the supremacy of the constitution and acting
as a check on political power.

2. Historical Context:
In the widely cited decision of Marbury v. Madison (1803), the Supreme
Court of the United States created judicial review by stating that it had
the power to examine the constitutionality of legislation.
- Inspired by the American model, India incorporated the idea of judicial
review into its Constitution in 1950, although it had some distinctive
elements specific to its specific legal and political environment.
- South Africa's Constitution, adopted in 1996, also incorporates robust
provisions for judicial review, reflecting the country's transition from
apartheid to democracy and its commitment to human rights.
3. Scope and Function:
- Judicial review in all three nations refers to the ability of courts to
overturn government policies, rules, and acts that contravene
fundamental constitutional principles.
- It serves to protect fundamental rights, uphold the separation of
powers, and maintain the supremacy of the constitution.

4. Methods and Procedures:

- While the U.S. follows a decentralized model of judicial review, where
any court can declare a law unconstitutional, India and South Africa have
centralized systems where the highest courts have exclusive jurisdiction
over constitutional matters.
- Each country has its own procedures for judicial review, including the
use of writs, public interest litigation, and constitutional challenges.

5. Impact and Significance:

- In order to preserve democracy, encourage accountability, and
guarantee the preservation of individual liberty, judicial review is
essential. It contributes to the integrity and credibility of the political
system by enabling courts to handle matters of constitutional importance
and settle conflicts between the arms of government.
In this comparative analysis, we will examine the similarities and
differences in the practice of judicial review across the U.S., India, and
South Africa, exploring the historical, institutional, and procedural aspects
that shape this essential aspect of constitutional governance. Through this
exploration, we aim to gain a deeper understanding of how judicial review
functions in different constitutional contexts and its implications for
democracy, governance, and the protection of rights.
ANALYSIS:
Conducting a comparative analysis of judicial review in the United States,
India, and South Africa provides a valuable opportunity to explore the
nuanced differences and similarities in how constitutional democracies
approach this fundamental aspect of governance. Let's delve into a
detailed analysis and comparison of these three countries:

1. Historical Context and Legal Foundations:

- United States: The origins of legal scrutiny in the United States can be
traced to the famous Marbury v. Madison case (1803), in which Supreme
Judge John Marshall established the fundamental idea of legal scrutiny
and affirmed the Supreme Court's jurisdiction to construe the Constitution
of the United States and overturn unlawful statutes.
- India: India's Constitution, adopted in 1950, explicitly provides for
judicial review as a fundamental feature. Inspired by the U.S. model, but
with adaptations to suit India's diverse and pluralistic society, the Indian
With legal scrutiny. The Apex Court has been crucial in evaluating and
upholding rights guaranteed by the Constitution.
- South Africa: South Africa's post-apartheid Constitution, enacted in
1996, establishes a constitutional court with the power of judicial review.
The Constitution emphasizes the protection of human rights and the rule
of law, reflecting the country's transition from apartheid to democracy.

2. Scope and Function of Judicial Review:

- United States: All tiers of administrative in the United States are
subject to legal scrutiny, which gives national and provincial legal systems
the authority to assess whether regulations and administrative activities
are legal. The rulings of the Apex Court establish legally enforceable
jurisprudence.
- India: The Indian Supreme Court has broad jurisdiction over judicial
review, including the power to review legislative and executive actions at
both the central and state levels. Public interest litigation has been
instrumental in expanding the scope of judicial review in India.
- South Africa: The Apex Court of South Africa has the jurisdiction to
examine whether laws, administrative orders, and judicial rulings are
legally binding. Its rulings enable solutions for fundamental liberties
infringement and are enforceable upon all governmental institutions.

3. Methods and Procedures:

- United States: Judicial review in the U.S. typically involves parties
bringing cases before courts, challenging the constitutionality of laws or
government actions. Adversarial proceedings, briefs, oral arguments, and
judicial opinions are common features of the process.
- India: Public interest litigation has been instrumental in expanding
access to judicial review in India. The Indian Supreme Court has
embraced innovative procedural mechanisms, such as suo motu
proceedings, PILs, and continuing mandamus, to address systemic issues
and protect fundamental rights.
- South Africa: Constitutional challenges can be brought by individuals,
organizations, or government bodies before the Constitutional Court. The
court has developed procedural rules to ensure effective access to justice,
including direct access in matters of public interest and the use of amicus
curiae briefs.

4. Impact and Significance:

- United States: Judicial review in the U.S. has profoundly shaped
American democracy, providing a check on legislative and executive
power and safeguarding individual rights. The Supreme Court's
interpretations of the Constitution have had far-reaching implications for
social and political issues.
- India: The Indian Supreme Court's expansive approach to judicial
review has played a crucial role in protecting fundamental rights,
promoting social justice, and addressing systemic inequalities. However,
concerns have been raised about judicial activism and the balance of
power between the judiciary and other branches of government.
- South Africa: The Constitutional Court's role in judicial review has
been instrumental in consolidating democracy, promoting reconciliation,
and advancing human rights in post-apartheid South Africa. Its decisions
have contributed to the transformation of the legal landscape and the
protection of vulnerable groups.
In conclusion, while the U.S., India, and South Africa share a commitment
to constitutional democracy and judicial review, each country has
developed unique approaches shaped by its historical, political, and legal
context. Understanding these differences and similarities enriches our
appreciation of the diverse ways in which constitutional democracies
navigate the complex terrain of governance and rights protection.

CONCLUSION
To sum up, the relative examination of legal scrutiny in the US, India, and
South Africa highlights the shared values and unique subtleties that define
this crucial component of federal republics. All three of these nations
exhibit a dedication to maintaining the order of statute, safeguarding
essential liberties, and guaranteeing the responsibility of governmental
activities through constitutional scrutiny, despite variances in historical
background, legal bases, and administrative frameworks.
The United States, with its rich tradition of constitutional jurisprudence,
has set the precedent for judicial review as a vital mechanism for
checking the powers of government and safeguarding individual liberties.
Through landmark decisions, the U.S. Supreme Court has shaped the
contours of American democracy and influenced legal systems worldwide.
In India, judicial review has emerged as a powerful tool for advancing
social justice, promoting human rights, and addressing systemic
inequalities. The Indian Supreme Court's expansive interpretation of
fundamental rights has expanded the scope of judicial review, enabling
the court to intervene in matters of public interest and protect the rights
of marginalized communities.
Similarly, South Africa's Constitutional Court has played a pivotal role in
consolidating democracy, fostering reconciliation, and promoting the
transformative agenda of the post-apartheid era. By upholding the values
enshrined in the Constitution, the court has advanced the cause of justice
and equality, ensuring that the promises of democracy are realized for all
citizens.
While each country's approach to judicial review reflects its unique
historical and political context, the overarching goal remains consistent:
to uphold the supremacy of the constitution, protect individual rights, and
ensure the accountability of government institutions. By examining the
experiences of the United States, India, and South Africa, we gain
valuable insights into the diverse ways in which constitutional
democracies navigate the complex interplay between law, politics, and
governance.
In an increasingly interconnected world, where the challenges of
globalization, technology, and social change transcend national borders,
the comparative study of judicial review offers valuable lessons for
policymakers, scholars, and legal practitioners alike. By learning from the
successes and shortcomings of different systems, we can continue to
strengthen the foundations of constitutional democracy and advance the
cause of justice and human rights for future generations.