AMITY LAW SCHOOL

CONSTITUTIONAL REVIEW

SUBMITTED TO:

SUBMITTED
BY:

Mr. Bineesh Kumar

(Faculty in ALS)

Yashvi Singh
LLM

INTRODUCTION
CONSTITUTION:
The basic meaning of constitution is, a body of fundamental principles or
established precedents according to which a state or any organization is
acknowledged to be governed.
CONSTITUTIONAL REVIEW:
What is the meaning of constitutional?
It means relating to an established set of principles governing a state.
Constitutional review or constitutionality review is the evaluation, in some
countries, of the constitutionality of the laws. Its supposed to be a system of
preventing violations of the rights granted by the constitution, assuring its
efficacy, their stability and preservation.
Here meaning of constitutionality is the condition of acting in accordance with
an applicable constitution.
But in general meaning of constitutional review is to review the working of the
constitution.
One source of the constitutionality is tendency to limit the absolute powers of
the monarchs. Constitutionality is a political principle, which partly finds
expression in the normative function of law, partly in real social existence.
Constitutionality shouldnt be treated as stalled, because it can change.
Therefore we can speak about constitutionality and the constitution as a unique
principle which finds complete expression in the written constitution. Material
constitutionality is the structural essence of each democratic political system.
We often use the terms judicial review and constitutional review as synonyms,
but it isnt appropriate to do so. While judicial review falls within the categories
of constitutional review, constitutional review need not only be the province of
the courts. Constitutional review differs from common law to civil law and as
well as from judicial review in general.
Judicial review refers to the powers of the judiciary for interpret the
constitution and to declare any such law or order of the legislature and
executive void, if it finds them in conflict with the constitution of India.

Whereas Constitutional review refers to the powers of the courts derived from
the constitution, where constitution restricts the absolute powers of the
monarchs.
ORIGIN OF THE CONSTITUTIONAL REVIEW
At present, more than 80% of the constitutions around the world have
stipulation for constitutional review. Western democracies adopted
constitutional review after World War II. The escalation of constitutional review
has theoretical importance for democratic consolidation. In practice, legislative
majority can pass the law which contradicts constitution, to rectify this
violations by majority was the aim of the constitutional review.
The main aim of the constitutional review is to rectify constitutional violations
like, violation of social Consensus, or focal points, on which the democracy is
based, by the majority.
If it is to be said that the legislative body are themselves the constitutional
judges of their own powers, and that the construction they put upon them is
conclusive upon the other departments, it may be answered, that this cannot be
the natural presumption, where it is not to be collected from any particular
provisions in the Constitution. It is far more rational to suppose, that the courts
were designed to be an intermediate body between the people and the
legislature, in order, among other things, to keep the latter within the limits
assigned to their authority. The interpretation of the laws is the proper and
peculiar province of the courts. A constitution is, in fact, and must be regarded
by the judges, as a fundamental law. It, therefore, belongs to them to ascertain
its meaning, as well as the meaning of any particular act proceeding from the
legislative body.
There is a landmark case of US related to constitutional review is
Marbury V. Madison2
In this case the Supreme Court announced for the first time the principle that a
court may declare an act of Congress void if it is inconsistent with the
Constitution. William Marbury had been appointed a justice of the peace for the
District of Columbia in the final hours of the Adams administration. When
James Madison, Thomas Jeffersons secretary of state, refused to deliver
Marburys commission, Marbury, joined by three other similarly situated
appointees, petitioned for a writ of mandamus compelling delivery of the
commissions.

US SC Case:

5 U.S. 137, 138 (1803)

Chief Justice John Marshall, writing for a unanimous Court, denied the
petition and refused to issue the writ. Although he found that the petitioners
were entitled to their commissions, he held that the Constitution did not give the
Supreme Court the power to issue writs of mandamus. Section 133 provided that
such writs might be issued, but that section of the act was inconsistent with the
Constitution and therefore invalid.
Although the immediate effect of the decision was to deny power to the Court,
its long-run effect has been to increase the Courts power by establishing the
rule that it is forcefully the province and duty of the judicial department to say
what the law is. Since Marbury v. Madison the Supreme Court has been the
final arbiter of the constitutionality of congressional legislation.
Constitution review refers to the powers of the constitutional law. Constitutional
law is the body of law which defines the relationship of different entities within
a state, namely, the legislature and the judiciary.
COMPARATIVE ANALYSIS
Constitution is a set of fundamental principles according to which a state or any
other organization is governed. If the constitution is written down in a single
comprehensive document, then it is said to be a codified constitution.
Constitution of India is the longest written article, containing 395 articles
divides in 22 parts, 12 schedules and 100th amendments. On the other hand
constitution of US is the shortest written constitution with 7articles and 27
amendments. In USA and India Constitutional review and judicial review is
same but in Europe constitutional review is different from judicial review.
In US authority is decentralized as all the judges possess power to annul a
statute on the grounds that it violates the constitution law.
In Europe authority is centralized as only the constitutional court may annul a
statute as unconstitutional. Judicial review is of statute is prohibited.

Bare Act:

Judiciary Act of 1789

In US Supreme Court is a court of general jurisdiction.

In Europe the Constitutional courts jurisdiction is restricted to revolving
constitutional disputes.
In US judicial review is understood to be concrete in that it is exercised
pursuant to ordinary litigation. In Europe judicial review is understood to be
abstract the review court does not resolve concrete case between to
litigation parties, but answers constitutional cases questions referred to it by
judges or elected officials. Judicial review seems to be a confusing powers
since the judges participate in legislative function. On the other hand in US
abstract review decision looks suspiciously like advisory opinion, which are
prohibited under American separation of powers doctrines.4
Abstract review means here a system which filters out unconstitutional laws
before they can harm people.
Concrete review means a system which is normally applicable on to the
unconstitutional matters and that the constitutional court must answer it.
METHODS OF CONSTITUTIONAL REVIEW
Judicial and political review
Concentrated and defucinary review
Anticipatory and successive review

PDF File

Alec Stone Sweet Yale Law School

CASE LAW
In England Parliament was Supreme, there was no judicial review of
legislation enacted by parliament. Nevertheless we can say that judicial
review was originated in England, where courts supervised the executive
actions to ensure that they do not transgress the limits defined by the
parliamentary acts. Judicial review of the acts of legislature was always in
vogues in the colonies. Britain extended the practice of judicial review of
legislations to its colonies like India. Therefore, the courts in India began
exercising the judicial review power ever since the first Act of British
Parliament enacted in 1858. Theres a case related to it.
Empress v. Burah and Book Singh5
In this case Calcutta High Court proclaimed the principle of judicial
review.
In this case 2 persons Burah and Book Singh, was convicted on a charge
of murder of deputy Commissioner of the Cossyah and Jynteeah Hills and
sentenced to death. The sentence was commuted to transportation for life
by the Chief Commissioner of Assam on the 23rd April 1876.
On the 9th July, 1870 the officer, in charge of the Kamrup jail forwarded
to this Court petitions of appeal from these prisoners, unaccompanied by
copies of the judgment.
First question which was raised in this case was, if High Court has any
power to entertain these applications.
However, since there was no bill of rights in the Constituent Acts, the scope of
judicial review was limited.
But then after independence when constitution was been drafted a lot of
discussions were made. Finally after debates and massive program of land
reform and change in property relations constitution spelt out what kind of
judicial review they wanted for India.
The framers were apprehensive of the negative judicial attitude that might
prevent legitimate socioeconomic reforms. Therefore, every attempt was made
to make the Constitution specific and detailed, so that the courts could not
impose further restrictions on the legislature.

Calcutta Case

(1878) ILR 3 Cal 64

NATIONAL COMMISSION TO REVIEW THE WORKING OF THE

CONSTITUTION {NCRWC}
This commission was set up by government resolution dated on 22 February,
2000. This commission shall examine, as to how best the constitution can
respond to the changing needs of efficient, smooth and effective system of
governance and socio-economic development of modern India within the
framework of the parliamentary democracy, and to recommend changes, if any,
that are required in the provision of the constitution without inferring with its
basic structure. The commission was required to complete its work and make
recommendations within one year. The tenure was of the commission was
extended up to 31st March, 2002.
The commission submitted its report in 2 volumes to the government.
CONCLUSION
As we have already discussed above what I found is that in India and US
judicial review and constitutional review are synonyms of each other. But in
Europe judiciary review is different from constitutional review. In Europe
judiciary review talks about the power of judges in general, but constitutional
review talks about power of the constitutional courts. Constitutional courts is
the high court which only deals with the constitutional laws. The ordinary courts
handles civil and criminal suit. On other side in India and US Supreme Court is
the highest court of appeal in the legal order. Constitutional review is doing a
great work in Europe and judicial review is doing great work in India and US.
As still there are some complicated matters where constitution need to review
but with the change of time it will be solved.

BIBLIOGRAPHY

WEB SOURCES
http://lawmin.nic.in/ncrwc/ncrwcreport.htm
http://indiankanoon.org/doc/600234/
http://www.lawcourts.org/LPBR/reviews/corrado805.htm
http://www.yourarticlelibrary.com/essay/judicial-review-in-india-conceptprovisions-amendments-and-other-details/24911/
http://shodhganga.inflibnet.ac.in/bitstream/10603/35900/7/chapter
%204.pdf