Comparative Public Law

Unit – 2

General Features of a Federal System as Opposed to a Unitary System under

Constitutional Federalism: A Comparative Public Law Perspective

I. Introduction

The structure of a state's political system plays a crucial role in determining how power is exercised
and distributed. In constitutional theory and practice, two dominant models have emerged: the
federal system and the unitary system. While both can function under democratic constitutions,
they diverge sharply in how authority is shared, autonomy is structured, and constitutional
supremacy is maintained. Federalism denotes a system where power is constitutionally divided
between two levels of government central and regional (states/provinces) each acting directly on
the people and being legally independent within its own sphere. In contrast, a unitary system
centralizes power in a national government, with regional or local authorities functioning at the
discretion of the center. This essay outlines the general features of federalism vis-à-vis unitary
systems, using comparative public law frameworks with reference to countries such as the United
States, India, Germany, Canada, France, and the United Kingdom

II. Defining Federal and Unitary Systems

A. Federal System

A federal system is a form of government where sovereignty is constitutionally shared between a

central authority and various subnational entities. The powers and responsibilities of each level are
clearly defined in a written constitution, which cannot be altered unilaterally by one level of
government. Federalism often arises in large or diverse nations to balance unity with regional
autonomy. Its philosophical foundation rests on the belief that decentralization promotes self-rule,
efficiency, and democratic participation.

B. Unitary System

A unitary system, by contrast, is one in which all powers are held by a single, central authority.
Regional or local bodies (if any) derive their authority from the central government and can be
altered, abolished, or overridden by it at will. This model is common in smaller, more culturally
homogeneous countries and is praised for administrative uniformity and national coherence.
III. General Features of a Federal System

1. Dual Government Structure

Federal systems consist of two (or more) levels of government, each functioning independently
within their own constitutionally assigned domains:

• A central/federal/national government
• One or more state/provincial governments

Each has direct authority over its citizens, not derived from the other.

Example: In the United States, both the federal and state governments have legislative, executive,
and judicial powers that function concurrently. In India, the Union and State governments operate
within their respective legislative lists (Union List, State List, and Concurrent List).

2. Written and Rigid Constitution

Federal systems require a written constitution that clearly delineates the powers and functions of
both levels of government. This ensures legal clarity and stability.Such constitutions are often rigid,
meaning amendments require special procedures, typically involving both federal and regional
consent.

Example:

• U.S. Constitution (Article V) requires approval by three-fourths of states.

• India (Article 368) requires ratification by at least half of the states for amendments
affecting federal structure.

3. Distribution of Legislative and Administrative Powers

Powers in a federal system are divided:

• Exclusive Powers: Assigned solely to the center or the states.

• Concurrent Powers: Shared by both, with a mechanism to resolve conflicts.
• Residuary Powers: Deal with subjects not listed; assigned differently in various federations.

Example:

• In India, residuary powers lie with the Union (Article 248).

• In Canada, they rest with the federal government.
 • In the U.S., powers not delegated to the federal government are reserved to the states (Tenth
Amendment).

4. Supremacy of the Constitution

In a federal state, the Constitution is the supreme law, and all legislative and executive powers are
subject to its authority. No law or action can contradict constitutional provisions.

Example: Both the U.S. Supreme Court and the Indian Supreme Court have struck down laws for
being unconstitutional, reaffirming the supremacy of their constitutions.

5. Independent Judiciary and Judicial Review

Federalism requires a neutral, independent judiciary to:

• Interpret the constitution

• Resolve disputes between levels of government
• Ensure legal boundaries are respected

Example: In Germany, the Federal Constitutional Court (Bundesverfassungsgericht) plays a vital

role in upholding the federal structure.

6. Bicameral Legislature Representing States

Federal countries often have a bicameral legislature, where:

• One house (usually the upper house) represents states or provinces.

• The other represents population or the people at large.

Example:

• U.S. Senate gives equal representation to each state (2 Senators).

• India’s Rajya Sabha represents states, though representation is weighted by population.

7. Autonomy in Financial Matters

Federal units typically enjoy some financial independence, though often supplemented by grants
and shared revenues from the center. Mechanisms like Finance Commissions or Equalization
Payments help balance fiscal inequalities.
IV. General Features of a Unitary System

1. Centralized Power Structure

In a unitary system, central government holds supreme authority. Any subnational units function
at its discretion and can be:

• Created
• Reorganized
• Abolished unilaterally

Example: In France, regional prefects are centrally appointed and oversee local implementation of
national policies.

2. Flexible or Unwritten Constitution

Unitary systems often have flexible constitutions, or in some cases, like the United Kingdom, no
single codified constitution. Parliamentary sovereignty is often a key principle. Amendments or
legal reforms can be passed easily by the national legislature.

3. Uniform Legal System

In unitary states, there is generally one legal system, ensuring:

• Legal uniformity
• Equal rights and obligations
• Simplified administration

This reduces conflicts of laws and overlapping jurisdictions.

4. No Constitutionally Protected Autonomy

Subnational governments (if any) do not have constitutional protection. They are delegated agents
of the central government and lack independent legislative or judicial authority.

Example: The UK Parliament can legally override devolved legislatures like those in Scotland or
Wales.

5. Centralized Judiciary

The judiciary in a unitary system is centralized and often lacks jurisdictional bifurcation as seen in
federal systems. Courts interpret laws uniformly across the state.
V. Comparative Chart: Federal vs. Unitary Systems

Feature Federal System Unitary System

Power Constitutionally divided Centralized in national
Distribution government
Constitution Written, rigid, supreme Flexible, often unwritten
Legislative Often bicameral (upper house for Usually unicameral or centralized
Bodies states)
Autonomy of Constitutionally guaranteed Delegated, can be withdrawn by
Regions center
Judicial System Independent judiciary with federal Centralized judiciary
oversight
Amendment Requires consent of states Passed by national legislature
Process alone
Examples U.S., India, Germany, Canada U.K., France, China, Japan
VI. Hybrid Systems and Trends

Many modern states incorporate elements of both federal and unitary models, giving rise to quasi-
federal or decentralized unitary systems.

• India: Often described as quasi-federal, where the center is strong but the states have
significant autonomy.
• United Kingdom: Though unitary, its devolved governance (Scotland, Wales, Northern
Ireland) has added a federal-like dimension.
• Spain: Constitutionally unitary, but autonomous communities have strong, constitutionally
protected powers.

These hybrids demonstrate that constitutional federalism is not always binary but exists along a
spectrum, shaped by historical, political, and social contexts.

VII. Conclusion

The federal and unitary models present distinct approaches to organizing state power. While
federal systems prioritize shared sovereignty and regional autonomy, unitary systems emphasize
centralized governance and uniformity. Both systems have their merits and challenges, and their
effectiveness depends on contextual adaptability, constitutional safeguards, and political culture.
In an era of increasing complexity, regional aspirations, and global interdependence, constitutional
federalism offers a valuable lens through which to examine how modern states manage diversity,
democracy, and development.
Models of Federalism: USA and India under Constitutional Federalism – A
Comparative Public Law Perspective

I. Introduction

Federalism, as a constitutional and political concept, offers a framework for balancing unity with
diversity, centralization with autonomy, and national interests with regional identities. It involves
a system where two levels of government—national and subnational (states or provinces)—share
sovereignty and function independently within their defined spheres. However, federalism is not
monolithic; different countries adopt different models of federalism based on their historical
context, constitutional structure, and political dynamics. This essay undertakes a comparative
analysis of the United States and India, two prominent federations with distinct approaches to
federalism. While both nations operate under written constitutions with federal structures, the U.S.
model represents classical dual federalism, and the Indian model reflects a more centralized or
quasi-federal structure. Through the lens of constitutional federalism, we explore how these two
systems differ in theory, design, and practice.

II. Concept of Federalism

Federalism is a constitutional mechanism where powers are divided and shared between different
levels of government, each acting directly on the people and being constitutionally autonomous in
its sphere. K.C. Wheare, often called the "father of modern federalism," defined federal
government as a system where "the powers of government are divided between a central and
regional authorities by the constitution."

In public law, federalism is evaluated in terms of:

• Distribution of legislative, executive, and financial powers

• Judicial independence and constitutional supremacy
• Autonomy of subnational units
• Dispute resolution mechanisms between governments

III. The U.S. Model of Federalism: Classical Dual Federalism

1. Historical Background

The United States Constitution (1787) established the first modern federal system. Born out of a
revolution against a centralized monarchy, the U.S. founders deliberately crafted a system that
respected state sovereignty while creating a strong national government.
2. Constitutional Design

• Written Constitution: The U.S. Constitution is a rigid, written document that clearly
demarcates powers between the federal government and the states.
• Tenth Amendment: Reinforces the principle that powers not delegated to the federal
government are reserved for the states.
• Enumerated Powers: Article I, Section 8 lists federal powers. States retain residual
powers.

3. Features of U.S. Federalism

• Dual Federalism: Known as the "layer cake" model—federal and state governments
operate in separate spheres with minimal overlap.
• Sovereignty of States: States are constitutionally recognized entities with significant
legislative and judicial powers.
• Independent Judiciary: The U.S. Supreme Court is the final arbiter in disputes involving
federalism (McCulloch v. Maryland, Gibbons v. Ogden).
• Senate Representation: Each state has equal representation (2 Senators), ensuring smaller
states have a voice.
• Interstate Commerce Clause: The federal government has used this clause to expand its
powers in areas like civil rights and environmental regulation.

4. Evolution

• From Dual to Cooperative Federalism: In the 20th century, especially after the New
Deal, the U.S. saw a shift toward cooperative federalism, where both levels work jointly
on national issues (e.g., healthcare, infrastructure).
• Modern Challenges: Disputes over federal mandates, immigration, and education
continue to test the limits of federal and state authority.

IV. The Indian Model of Federalism: Quasi-Federal or Cooperative Federalism

1. Historical Background

India’s federal structure was shaped by:

• Its colonial legacy

• The need for national unity after independence
• Regional, linguistic, and ethnic diversity The framers of the Constitution rejected a pure
federal model and instead crafted a strong center with limited autonomy to states to ensure
stability and cohesion.
2. Constitutional Design

• Article 1: Describes India as a "Union of States", indicating that states have no right to
secede.
• Seventh Schedule: Distributes legislative powers into the Union List (central), State List,
and Concurrent List (shared).
• Residuary Powers: Assigned to the Union, unlike in the U.S. where they rest with the
states.
• Emergency Provisions (Articles 352–360): Allow the center to take over state functions
during emergencies, further centralizing authority.

3. Features of Indian Federalism

• Quasi-Federal Structure: Described by the Supreme Court in State of West Bengal v.

Union of India (1963) as more unitary than federal.
• Asymmetrical Federalism: Special provisions for certain states (e.g., Articles 371–371J).
• Single Constitution and Citizenship: Unlike the U.S., where states have separate
constitutions.
• Strong Union Executive: The central government can dismiss state governments under
Article 356 (President’s Rule).
• Financial Centralization: Taxation and resource control are heavily skewed in favor of
the Union. The Finance Commission balances this through tax sharing.

4. Evolution

• Post-1990s Federalism: Rise of coalition politics gave states more bargaining power.
• Cooperative Federalism: Emphasized in the NITI Aayog and GST Council, both
requiring center-state collaboration.
• Judicial Recognition of Federalism: In S.R. Bommai v. Union of India (1994), the
Supreme Court laid down safeguards against arbitrary imposition of President’s Rule.

V. Comparative Analysis: USA vs. India

Feature United States India

Constitutional Federal republic Union with federal features
Status
Power States and federal govt. co- Strong center; limited state autonomy
Distribution equal
Residuary Powers States (10th Amendment) Union (Article 248)
State Equal in Senate Unequal in Rajya Sabha
Representation
 Emergency Limited emergency provisions Extensive central override under
Powers Articles 352–356
Judicial System Dual system (state & federal Integrated judiciary with Supreme Court
courts) at top
Financial Fiscal federalism with state Centralized; dependent states
Relations independence
Amendment Needs states’ ratification Some amendments require state
Process (Article V) approval (Art. 368)
Language of Explicitly federal "Union of States" (not federal)
Constitution
VI. Challenges and Trends

USA

• Growing tensions in immigration law, environmental policy, and abortion rights show
states asserting autonomy.
• Questions around state nullification and federal mandates persist.

India

• Frequent use of President’s Rule (Article 356) has raised concerns of political misuse.
• Regional parties demand greater fiscal and legislative autonomy.
• Ongoing debate on balancing cooperative and competitive federalism.

VII. Conclusion

Both the U.S. and Indian models of federalism reflect their unique historical and political journeys.
The United States follows a classical model where states are co-sovereign and federalism is a core
constitutional identity. India, on the other hand, adopts a quasi-federal system with a strong center,
shaped by the need for unity in a diverse and complex society. While structurally different, both
systems have evolved dynamically—the U.S. towards greater cooperation between governments
and India towards increasing state empowerment. Understanding these models under the umbrella
of comparative constitutional federalism underscores the fact that federalism is not a rigid doctrine,
but a flexible, adaptive principle shaped by a nation’s constitutional culture and political
exigencies.

Concept & Origin of Judicial Review: A Comparative Public Law Perspective

I. Introduction

Judicial review is a foundational concept in constitutional governance that empowers courts to

assess the constitutionality of laws, executive actions, and even amendments. It ensures that no
organ of the state legislative, executive, or judicial can act beyond the limits prescribed by the
Constitution. As a tool of constitutional control, judicial review maintains the supremacy of the
Constitution, protects fundamental rights, and preserves the principle of checks and balances in a
democratic system. This essay explores the concept and historical origins of judicial review, with
particular focus on comparative public law—highlighting its evolution and application in the
United States, India, and other prominent jurisdictions like the United Kingdom, Germany, and
Canada.

II. Concept of Judicial Review

Judicial review refers to the power of courts to examine the actions of the legislature and the
executive to determine whether such actions are in conformity with the Constitution. If a law or
executive order is found to be unconstitutional, the judiciary has the power to declare it null and
void.

Types of Judicial Review:

1. Constitutional Review: Determining whether legislation or government action is

consistent with the Constitution.
2. Administrative Review: Examining administrative actions for fairness, legality, and
reasonableness.
3. Judicial Review of Constitutional Amendments: In certain systems, even amendments
to the Constitution may be reviewed.

Core Principles:

• Supremacy of Constitution
• Separation of Powers
• Checks and Balances
• Rule of Law
• Protection of Fundamental Rights

III. Origin and Evolution of Judicial Review

A. United States: The Birthplace of Judicial Review

The concept of judicial review was firmly established in the United States with the landmark
decision in Marbury v. Madison (1803). Although the U.S. Constitution does not explicitly
mention judicial review, Chief Justice John Marshall held that it was an implied power inherent in
the role of courts under a written constitution.
Key Highlights:

• Marbury v. Madison (1803): Laid down that "It is emphatically the province and duty of
the judicial department to say what the law is."
• Article III of the U.S. Constitution: Grants judicial power to the Supreme Court and such
inferior courts as Congress may establish.
• Tenth Amendment: Reinforces federalism by reserving undelegated powers to the states,
creating tension that often leads to judicial resolution.

Over time, U.S. judicial review has expanded to include:

• Striking down federal and state laws

• Reviewing executive actions
• Interpreting the Bill of Rights and Fourteenth Amendment
• Limiting even constitutional amendments through interpretation

B. India: Judicial Review in a Parliamentary Democracy

India adopted the concept of judicial review from both U.S. constitutional practice and British
legal traditions. It is explicitly recognized in the Indian Constitution under various articles.

Constitutional Provisions:

• Article 13(2): Laws inconsistent with or in derogation of fundamental rights are void.
• Article 32 & 226: Empower the Supreme Court and High Courts to enforce constitutional
rights.
• Article 131, 136, 141: Facilitate judicial review of laws and administrative actions.

Evolution Through Case Law:

1. A.K. Gopalan v. State of Madras (1950): Early restrictive interpretation of rights.

2. Golak Nath v. State of Punjab (1967): Judicial review extended to constitutional
amendments.
3. Kesavananda Bharati v. State of Kerala (1973): Introduced the Basic Structure Doctrine,
allowing courts to review constitutional amendments.
4. Minerva Mills v. Union of India (1980): Strengthened judicial review as part of the basic
structure.

India’s model of judicial review is integrated and expansive, extending to:

• Legislative actions
• Executive policies
 • Constitutional amendments
• Actions of public authorities

IV. Comparative Analysis: Other Jurisdictions

A. United Kingdom: Parliamentary Sovereignty vs. Judicial Review

The UK traditionally rejected constitutional judicial review due to the doctrine of parliamentary
sovereignty Parliament can make or unmake any law. However, with developments such as:

• The Human Rights Act, 1998

• The Constitutional Reform Act, 2005
• Membership in the European Union (prior to Brexit)

The British courts began exercising quasi-judicial review, especially in the context of human rights,
devolution, and administrative law.

Key Case:

• R (Miller) v. Secretary of State for Exiting the EU (2017): Affirmed that government could
not trigger Brexit without parliamentary approval.

B. Germany: Strong Constitutional Court Model

Germany has a specialized Constitutional Court (Bundesverfassungsgericht) with exclusive

jurisdiction over constitutional matters.

Features:

• Can strike down laws that violate the Basic Law (Grundgesetz)
• Reviews constitutionality of both federal and state actions
• Allows individuals to file constitutional complaints (Verfassungsbeschwerde)

Judicial review is central to post-WWII German constitutionalism, particularly in protecting

human dignity and democratic order.

C. Canada: Charter-based Judicial Review

Canada follows a model of constitutional supremacy post the Charter of Rights and Freedoms
(1982). Judicial review ensures that legislation adheres to the Charter. However, the Canadian
system allows Parliament to override certain rights under the "notwithstanding clause" (Section
33), a unique limitation on judicial review.
V. Models of Judicial Review

Model Description Example Countries

Strong-Form Courts can strike down laws, binding on all U.S., India, Germany
Review branches
Weak-Form Courts can interpret laws, but legislatures can U.K., Canada (to some
Review override extent)
Centralized Specialized constitutional courts handle all Germany, Italy, South
Review constitutional disputes Korea
Decentralized All courts can engage in constitutional U.S., India
Review interpretation
VI. Merits and Criticisms of Judicial Review

Merits:

• Protects constitutional supremacy

• Safeguards individual rights
• Checks abuse of power
• Enforces rule of law and accountability

Criticisms:

• Counter-majoritarian dilemma: Unelected judges striking down laws passed by elected

representatives
• Judicial overreach: Judiciary venturing into policy-making domains
• Undermining legislative intent
• Delay and inconsistency in judgments

VII. Conclusion

Judicial review is a dynamic constitutional mechanism that lies at the heart of democratic
governance and constitutionalism. From its emergence in Marbury v. Madison to its
institutionalization in modern democracies like India and Germany, judicial review has evolved to
serve as a bulwark against authoritarianism and arbitrariness. While different countries adopt
different models ranging from strong-form to weak-form, centralized to decentralized the core
purpose remains the same: to ensure that all laws and actions conform to constitutional principles.
In the global context, judicial review continues to evolve, shaped by historical experiences, legal
traditions, and the demands of justice in modern society.
Constitutional Judicial Review: A Comparative Public Law Perspective

I. Introduction

Constitutional judicial review is one of the most powerful and significant doctrines in comparative
public law. It refers to the authority of the judiciary to interpret the constitution and to invalidate
legislative and executive actions that violate constitutional norms. At its core, constitutional
judicial review ensures the supremacy of the Constitution, preserves the rule of law, and secures
fundamental rights against encroachment by state institutions. In modern constitutional
democracies, judicial review has evolved from a narrow tool of legal interpretation to a broader
mechanism of constitutional governance, empowering courts to play a crucial role in maintaining
constitutional equilibrium. This essay explores the concept, foundations, and various models of
constitutional judicial review, focusing on comparative practices in countries like the United States,
India, Germany, Canada, and the United Kingdom.

II. Meaning and Scope of Constitutional Judicial Review

Constitutional judicial review is the power of courts particularly constitutional or supreme courts
to review the constitutionality of laws, executive orders, and even constitutional amendments, and
declare them ultra vires if they contravene the basic provisions or principles of the Constitution.

Purpose:

• To ensure conformity of all laws with constitutional mandates

• To protect individual rights and liberties
• To maintain the balance of power among organs of the state
• To uphold the separation of powers and federalism

Judicial review is inherently legal and political: legal, because it interprets and applies the
constitution; political, because its effects shape governance, legislation, and public policy.

III. Models of Constitutional Judicial Review

Comparative public law has produced several models of constitutional judicial review:

1. Centralized Model

• Operates through a specialized constitutional court that exclusively decides constitutional

matters.
• Example: Germany, Austria, Italy, South Korea
• Courts review not only laws but also resolve constitutional disputes between state organs.
2. Decentralized (Diffuse) Model

• Every court has the power to interpret the Constitution and test the validity of laws.
• Example: United States, India, Australia
• The Supreme Court typically has the final authority but lower courts can also engage in
constitutional adjudication.

3. Strong-Form Judicial Review

• Courts can strike down unconstitutional laws or government actions, and such decisions
are binding.
• Examples: United States, India, Germany

4. Weak-Form Judicial Review

• Courts can interpret laws or issue declarations of incompatibility, but the legislature retains
final authority to override the decision.
• Example: United Kingdom, New Zealand, Canada (to some extent)

IV. Constitutional Judicial Review in the United States

A. Foundation: Marbury v. Madison (1803)

The U.S. Supreme Court, under Chief Justice John Marshall, in Marbury v. Madison, firmly
established judicial review as an inherent judicial function even though the Constitution itself does
not explicitly grant this power.

“It is emphatically the province and duty of the judicial department to say what the law is.” – John
Marshall

B. Scope and Nature

• The U.S. follows a strong-form, decentralized model.

• Courts can invalidate federal and state laws, executive actions, and even state constitutional
provisions.
• Review also extends to administrative decisions, treaty interpretations, and civil liberties
under the Bill of Rights and Fourteenth Amendment.
C. Judicial Activism and Restraint

• The U.S. judiciary has historically oscillated between periods of activism (e.g., Warren
Court in civil rights) and restraint (e.g., Rehnquist Court emphasizing federalism).
• Landmark Cases:
o Brown v. Board of Education (1954): Struck down racial segregation
o Roe v. Wade (1973): Protected reproductive rights (later overturned in 2022)
o Obergefell v. Hodges (2015): Legalized same-sex marriage

V. Constitutional Judicial Review in India

A. Constitutional Basis

India's Constitution explicitly provides for judicial review:

• Article 13: Declares that any law inconsistent with fundamental rights is void.
• Article 32 & 226: Empower the Supreme Court and High Courts to enforce constitutional
rights.
• Article 141: Decisions of the Supreme Court are binding across India.

B. Evolution Through Landmark Cases

India’s judiciary has developed a robust doctrine of constitutional review:

• Golak Nath v. State of Punjab (1967): Parliament cannot amend fundamental rights.
• Kesavananda Bharati v. State of Kerala (1973): Introduced the Basic Structure Doctrine
constitutional amendments must not alter the basic structure of the Constitution.
• Minerva Mills v. Union of India (1980): Reinforced balance between Fundamental
Rights and Directive Principles.
• I.R. Coelho v. State of Tamil Nadu (2007): Even laws placed under Schedule IX are
subject to review.

C. Broad Scope

• India’s review includes laws, executive orders, constitutional amendments, ordinances, and
even election-related disputes.
• The judiciary has often stepped in to fill legislative voids (e.g., guidelines on sexual
harassment in Vishaka v. State of Rajasthan).
VI. Constitutional Judicial Review in Other Jurisdictions

A. Germany

• Follows the centralized model with a powerful Federal Constitutional Court.

• Can review legislation, presidential acts, and even ban political parties.
• Recognized for enforcing the principle of proportionality and protecting human dignity
under the Basic Law (Grundgesetz).

B. Canada

• Constitution Act, 1982 introduced the Charter of Rights and Freedoms.

• Courts review laws for consistency with Charter rights.
• Includes a "notwithstanding clause" (Section 33) allowing legislatures to override some
court decisions.

C. United Kingdom

• Lacks a codified constitution but judicial review has evolved post:

o Human Rights Act, 1998
o EU membership (prior to Brexit)
• Courts can issue declarations of incompatibility (not strike down laws).
• Notable Case: R (Miller) v. Prime Minister (2019)—declared the prorogation of Parliament
unlawful.

VII. Strengths and Challenges of Constitutional Judicial Review

Strengths

• Constitutional Supremacy: Prevents arbitrary use of legislative or executive power.

• Human Rights Protection: Guards against majoritarianism and protects minorities.
• Accountability: Holds all branches of government accountable to the Constitution.
• Rule of Law: Upholds due process and legal consistency.

Challenges

• Judicial Overreach: Courts may enter policy or legislative domains.

• Counter-Majoritarianism: Unelected judges nullifying democratically enacted laws.
• Delayed Justice: Review proceedings can be slow and inaccessible to common citizens.
• Politicization of Judiciary: Perceived bias in judicial appointments or decisions.
VIII. Conclusion

Constitutional judicial review is now an essential feature of modern constitutionalism. Whether

centralized or decentralized, weak or strong, judicial review functions as a guardian of
constitutional values, ensuring that laws and actions of the state conform to the highest legal norms.
The U.S. model emphasizes judicial independence and decentralization. The Indian model, while
inspired by the U.S., integrates British administrative principles and has expanded judicial review
to include even constitutional amendments. Countries like Germany have created specialized
constitutional courts, whereas the UK maintains a cautious balance due to parliamentary
sovereignty. In the final analysis, constitutional judicial review is not just a judicial function; it is
a democratic necessity, a safeguard for liberty, and a mechanism to maintain constitutional order
in both established and emerging democracies.

From Marbury to Kesavananda: The Evolution of Judicial Review in

Comparative Public Law

I. Introduction

Judicial review is the constitutional principle that empowers the judiciary to examine the validity
of legislative and executive actions and declare them void if they are inconsistent with the
Constitution. It serves as the guardian of constitutional supremacy, ensuring that laws and public
actions adhere to the principles enshrined in a country’s foundational legal document. The
trajectory of judicial review, from Marbury v. Madison (1803) in the United States to Kesavananda
Bharati v. State of Kerala (1973) in India, reflects a profound development in comparative public
law. This journey marks the transformation of the judiciary from a passive interpreter to an active
guardian of constitutional values. This essay traces the development of judicial review from its
American origins to its evolution and transformation in India, highlighting key decisions and
constitutional doctrines that have shaped the concept globally.

II. Marbury v. Madison (1803): Birth of Judicial Review

The foundation of modern judicial review was laid in the United States through the landmark
decision in Marbury v. Madison (1803).

A. Background

Following a political transition from Federalists to Jeffersonian Republicans, William Marbury

sued for the delivery of a judicial commission that had not been delivered by the incoming
administration.
B. The Decision

Chief Justice John Marshall held that the relevant provision of the Judiciary Act of 1789 that
allowed Marbury to bring his case directly to the Supreme Court was unconstitutional. Thus, the
Court could not grant him his commission.

“It is emphatically the province and duty of the judicial department to say what the law is.” – John
Marshall

C. Significance

• Established the principle of judicial review.

• Asserted that the Constitution is supreme, and any law inconsistent with it is void.
• Defined the role of courts in upholding constitutional governance.
• Did not find explicit support in the U.S. Constitution, making it a judicially created doctrine.

This case became the bedrock of constitutional review worldwide and heavily influenced
constitutional jurisprudence in many countries, including India.

III. Development of Judicial Review in the U.S. Post-Marbury

Following Marbury, judicial review became an accepted and essential feature of American
constitutional law.

• In McCulloch v. Maryland (1819), the Court expanded federal power by interpreting the
Necessary and Proper Clause broadly.
• Brown v. Board of Education (1954) marked the use of judicial review to promote civil
rights and equality.
• Roe v. Wade (1973) used judicial review to establish reproductive rights.

The American experience showed that judicial review could evolve from a constitutional safeguard
to a tool of social transformation.

IV. Judicial Review in India: Borrowed and Reinvented

A. Constitutional Foundation

Unlike the U.S., judicial review in India is explicitly provided for in the Constitution:

• Article 13: Laws inconsistent with fundamental rights are void.

• Articles 32 and 226: Empower the Supreme Court and High Courts to issue writs and
enforce fundamental rights.
 • Article 141: Decisions of the Supreme Court are binding on all courts.

India thus borrowed the concept of judicial review from the U.S. but gave it explicit constitutional
status, while integrating elements from the British system of administrative law.

V. The Indian Judicial Review Journey: From A.K. Gopalan to Kesavananda Bharati

1. A.K. Gopalan v. State of Madras (1950)

The Supreme Court initially took a narrow view of fundamental rights, holding that laws could not
be invalidated unless they directly violated a specific right.

2. Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965)

In these early cases, the Court held that constitutional amendments were not subject to judicial
review under Article 13, allowing Parliament to amend fundamental rights.

3. Golaknath v. State of Punjab (1967)

A turning point where the Court held that Parliament could not amend fundamental rights,
effectively extending judicial review to constitutional amendments. Parliament was not above the
Constitution, and fundamental rights were transcendental and inviolable.

4. Kesavananda Bharati v. State of Kerala (1973)

A. Facts and Issues

Swami Kesavananda Bharati challenged the Kerala Land Reforms Act and the scope of
Parliament's power to amend the Constitution.

B. The Decision

• The Court delivered a 13-judge bench verdict—the largest in Indian history.

• Held that Parliament can amend any part of the Constitution, but cannot alter its "Basic
Structure."

C. The Basic Structure Doctrine

Judicial review was declared part of the basic structure, and therefore even constitutional
amendments could be reviewed and struck down if they violated fundamental constitutional
principles.
D. Impact

• Judicial review became supreme, even over constitutional amendments.

• Cemented the judiciary's role as the final interpreter and guardian of the Constitution.
• Balanced parliamentary supremacy with constitutional supremacy.

VI. Marbury and Kesavananda: A Comparative Analysis

Feature Marbury v. Madison Kesavananda Bharati (1973)
(1803)
Country United States India
Constitutional Basis Implied judicial power Express constitutional provisions (Art.
13, 32)
Type of Review Review of legislative Review of constitutional amendments
action
Principle Established Judicial Review Basic Structure Doctrine
Nature of Judicial Assertion of judicial Limitation on Parliament's amending
Intervention authority power
Long-Term Effect Judicial supremacy Judicial supremacy + constitutional
protection

Both cases mark a judicial assertion of constitutional supremacy, though the Indian Supreme Court
went further by limiting even constitutional amendments through the Basic Structure doctrine.

VII. Judicial Review in Comparative Perspective

Countries around the world have adopted variations of judicial review:

• Germany: Strong constitutional court with exclusive powers.

• Canada: Courts can invalidate laws violating the Charter of Rights, but Parliament can
override with the "notwithstanding clause".
• UK: No full judicial review due to parliamentary sovereignty, but declarations of
incompatibility exist under the Human Rights Act.
• South Africa: Constitutional Court can strike down laws and amendments violating the
Bill of Rights.

India and the U.S. represent the most powerful forms of judicial review, while other systems
balance it with legislative authority.

VIII. Conclusion

From Marbury to Kesavananda, the doctrine of judicial review has evolved from an implied
judicial function to an explicit constitutional guarantee and doctrine of democratic resilience. Both
decisions marked decisive moments where the judiciary positioned itself as the protector of
constitutional supremacy and fundamental rights. While Marbury established the idea of judicial
review, Kesavananda elevated it to doctrinal complexity, introducing the basic structure as a
permanent constraint on constitutional power. Together, these cases have influenced constitutional
courts worldwide and continue to serve as cornerstones of comparative constitutional
jurisprudence.

Rule of Law: A Comparative Study – USA, UK & India in Comparative Public

Law

I. Introduction

The Rule of Law is a foundational principle in democratic societies, symbolizing legal equality,
accountability, and fairness. It implies that no one is above the law not even the government and
that laws must be applied equally, fairly, and consistently. Though widely accepted in theory, the
interpretation and application of the Rule of Law vary across jurisdictions based on their
constitutional traditions, legal systems, and historical evolution. This essay undertakes a
comparative study of the Rule of Law in the United Kingdom, the United States, and India,
examining its conceptual underpinnings, constitutional status, judicial interpretations, and
practical implementation.

II. Concept and Origins of Rule of Law

The concept of Rule of Law can be traced to classical Western philosophy, notably Aristotle, who
stated that the law should govern, and those in power should be servants of the law. However, the
modern articulation of Rule of Law primarily derives from British constitutional thought,
particularly through A.V. Dicey, who in his seminal work "Introduction to the Study of the Law of
the Constitution" (1885), described three key principles:

1. Supremacy of Law – No one is above the law, and laws should be applied equally.
2. Equality before the Law – Equal subjection of all classes to the ordinary law.
3. Predominance of Legal Spirit – The Constitution is a result of the ordinary law of the
land.

III. Rule of Law in the United Kingdom

A. Evolution through Common Law

In the UK, which lacks a written constitution, the Rule of Law has historically evolved through
judicial precedent, parliamentary practices, and common law doctrines. The principle gained
formal recognition through key legal developments:

• Magna Carta (1215): Limited the powers of the king and laid the foundation for legal
accountability.
 • Bill of Rights (1689): Further curtailed absolute monarchy and affirmed parliamentary
supremacy.
• A.V. Dicey's articulation: Brought intellectual clarity to the doctrine in modern legal
scholarship.

B. Parliamentary Sovereignty vs Rule of Law

One of the main tensions in the UK is between Parliamentary Sovereignty and the Rule of Law.
While Parliament can, in theory, make or unmake any law, courts have increasingly asserted the
Rule of Law as a fundamental constitutional principle.

C. Judicial Interpretation

Recent UK cases have emphasized the Rule of Law as a constitutional principle:

• R v. Secretary of State for the Home Department, ex parte Pierson (1998): Courts
affirmed that Parliament must legislate clearly if it seeks to override fundamental rights.
• R (Miller) v. Prime Minister (2019): UK Supreme Court declared the prorogation of
Parliament unlawful, reinforcing that government actions must comply with constitutional
norms.

Thus, the Rule of Law in the UK exists as a principle of interpretation and governance, even in the
absence of a codified constitution.

IV. Rule of Law in the United States

A. Constitutional Foundation

In the United States, the Rule of Law is deeply embedded in the written Constitution of 1787,
which establishes a separation of powers, federalism, and judicial review. The Supremacy Clause
(Article VI) ensures that the Constitution is the highest law, binding on all branches of government.

B. Judicial Safeguard

The U.S. Supreme Court, since Marbury v. Madison (1803), has functioned as the guardian of
constitutional supremacy. Rule of Law is upheld through the enforcement of due process, equal
protection, and individual liberties, particularly under:

• Fifth and Fourteenth Amendments (Due Process Clause)

• First Amendment (Freedom of speech, religion, etc.)
• Fourth Amendment (Protection from unreasonable searches)
C. Key Cases

• Marbury v. Madison (1803): Established judicial review, making courts the arbiters of
constitutional compliance.
• Brown v. Board of Education (1954): Invalidated racial segregation in schools, upholding
equality before law.
• United States v. Nixon (1974): Held that not even the President is above the law,
reinforcing legal accountability.

The U.S. model integrates the Rule of Law into every level of constitutional governance, enforced
through independent judiciary, checks and balances, and enforceable rights.

V. Rule of Law in India

A. Constitutional Provisions

India’s Constitution explicitly incorporates the Rule of Law:

• Preamble: Promotes justice, equality, and liberty.

• Article 14: Ensures equality before the law and equal protection of laws.
• Article 21: Protects life and personal liberty except by procedure established by law.
• Article 32 & 226: Empower courts to enforce fundamental rights.

Though not mentioned in explicit terms, the Supreme Court has held Rule of Law to be part of the
“basic structure” of the Constitution, which cannot be abrogated even by constitutional amendment
(Kesavananda Bharati v. State of Kerala, 1973).

B. Judicial Interpretation and Expansion

The Indian judiciary has expanded the scope of Rule of Law through progressive interpretations:

• Maneka Gandhi v. Union of India (1978): Interpreted "procedure established by law" to

mean "just, fair, and reasonable" procedure, aligning Indian due process with American
standards.
• Indira Nehru Gandhi v. Raj Narain (1975): Held that democracy and Rule of Law form
part of the basic structure.
• Kuldip Nayar v. Union of India (2006): Upheld Rule of Law in the context of fair
electoral processes.
C. Challenges in Implementation

Despite its strong constitutional footing, Rule of Law in India faces challenges:

• Delays in justice delivery

• Corruption in public offices
• Police excesses and custodial violence
• Arbitrary use of preventive detention laws

Yet, courts have remained vigilant, striking down laws and executive actions that threaten
constitutional values.

VI. Comparative Analysis: UK, USA, and India

Feature UK USA India
Constitutional Unwritten Written Constitution; Written Constitution; Rule
Status constitution; Rule implicit through Supremacy of Law part of Basic
of Law as a Clause and Bill of Rights Structure
principle
Judicial Limited (due to Strong; judiciary can strike Strong; includes judicial
Enforcement Parliamentary down laws review of constitutional
Sovereignty) amendments
Landmark Miller (2019) Marbury v. Madison (1803) Kesavananda Bharati
Case (1973)
Challenges Parliamentary Political polarization; Legal delays; executive
dominance; executive overreach arbitrariness
Brexit
VII. Conclusion

The Rule of Law, while universally cherished, is understood and applied differently across legal
systems. In the United Kingdom, it acts as a constitutional principle balancing Parliamentary
sovereignty. In the United States, it is the backbone of constitutional governance, enforced robustly
through judicial review and separation of powers. In India, it is a living constitutional doctrine,
bolstered by the basic structure doctrine and expansive interpretation of rights. Despite differences,
all three jurisdictions affirm the Rule of Law as essential for democracy, justice, and accountability.
The principle continues to evolve as societies confront new challenges—from executive excesses
and digital surveillance to populist threats and legal inequality. The comparative experience shows
that the strength of Rule of Law lies not only in legal texts but in the vigilance of courts, civil
society, and constitutional morality.