What is Judicial Review? How does it shape the Law and Society?

Imagine a legal system where the government has unchecked power to enact laws without regard for individual rights or the fundamental principles of the Constitution. Such a scenario would be disastrous for justice and democracy. Fortunately, the doctrine of judicial review stands as a powerful guardian of constitutional integrity, ensuring that the government remains within the bounds of the law. In this article, I will explore the origins, functions, models, methods, strengths, weaknesses, challenges, and alternatives of judicial review in different legal systems, with a focus on the US and the UK.

What is Judicial Review?

Judicial review is one of the most fundamental and controversial aspects of constitutional law. At its core, it empowers the courts to assess the constitutionality of laws and governmental actions, thereby holding them accountable to the supreme law of the land. It refers to the power of courts to review and invalidate the actions of other branches of government or lower courts that are inconsistent with the Constitution or the law. Judicial review can have a profound impact on the law and society, as it can shape or change legal principles and social norms.

Judicial review is the power of the courts to strike down laws that they believe are unconstitutional. This means that the courts have the power to declare that a law is invalid and unenforceable. It is a power that is not explicitly granted to the courts by the Constitution. Instead, it was established by the Supreme Court in the case of Marbury v. Madison (1803).

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In Marbury v. Madison, the Supreme Court was asked to decide whether a law passed by Congress was constitutional. The Court ruled that the law was unconstitutional, and in doing so, it established the power of judicial review. However, judicial review also faces resistance and criticism from various sources, as it can be seen as undemocratic, politicized, or arbitrary.

How Does Judicial Review Work?

Judicial review is a vital function of the courts that allows them to check and balance the actions of the other branches of government and ensure that they are consistent with the Constitution.

The basic steps of judicial review are as follows:

– A person or group challenges a law in court.

– The court decides whether the law is constitutional.

– If the court finds that the law is unconstitutional, it strikes down the law.

However, these steps may vary depending on the country, the type of law, and the level of court involved. For instance, some countries have special constitutional courts that deal exclusively with judicial review cases, while others allow any court to exercise this power. Some countries have written constitutions that explicitly grant the courts the power of judicial review, while others rely on unwritten conventions or judicial precedents. Some countries have strong judicial reviews that can invalidate any law or action by the government, while others have weak judicial reviews that can only review certain types of laws or actions.

How Does Judicial Review Shape the Law and Society?

Judicial review has a long and rich history in different legal systems. The historical origins of judicial review can be traced back to the English common law tradition. In the English common law tradition, judges had the power to declare that laws were invalid if they were inconsistent with the common law.

The doctrine of Judicial Review was first established in the United States in 1803, and it has since been adopted by many other countries. The landmark case of Marbury v. Madison (1803) established the judicial review, where Chief Justice John Marshall declared that “it is emphatically the province and duty of the judicial department to say what the law is”. In doing so, it established the power of judicial review. Since then, judicial review has been used by the US Supreme Court to interpret and enforce the US Constitution and its amendments, especially the Bill of Rights and the Fourteenth Amendment. Some of the most famous and influential cases of judicial review in US history include Brown v. Board of Education (1954), which overturned racial segregation in public schools; Roe v. Wade (1973), which recognized a constitutional right to abortion; Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide; and many others.

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Another case of judicial review is the Indian Supreme Court’s decision in Aadhaar v. Union of India (2018), which upheld the constitutionality of Aadhaar, a biometric identification system implemented by the Indian government. Aadhaar was challenged by several petitioners who argued that it violated their fundamental rights to privacy, equality, dignity, and freedom. The Supreme Court held that Aadhaar was a valid and reasonable measure to achieve various social welfare objectives, such as preventing fraud, corruption, and leakage in public services. However, the court also struck down some provisions of the Aadhaar Act and regulations that were deemed excessive or arbitrary, such as the mandatory linking of Aadhaar with bank accounts, mobile phones, and school admissions.

Judicial review can have a significant impact on the law and society, as it can establish or change legal principles and social norms. For example, judicial review can protect individual rights and liberties from governmental encroachment or discrimination; promote equality and justice for marginalized groups; ensure checks and balances among different branches of government; resolve constitutional conflicts or ambiguities; uphold the rule of law and democracy; etc. Judicial review can also reflect or influence public opinion and social movements, as it can respond to or generate social change.

However, judicial review also has its limitations and drawbacks as a tool for interpreting and enforcing the Constitution and human rights. For example, it can be unpredictable or inconsistent; depend on the composition and ideology of the judges; lag behind or ahead of social change; create backlash or resistance from other branches of government or the public; etc. It can also raise questions about its legitimacy and accountability, as it can be seen as usurping the power of elected representatives or violating popular sovereignty.

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Judicial review can vary significantly in different legal systems, depending on their constitutional structure, legal tradition, political culture, etc. For instance, one of the main differences between judicial review in the US and the UK is that the US has a written constitution that is supreme over other sources of law, while the UK has an unwritten constitution that is flexible and adaptable to changing circumstances. Another difference is that judicial review in the US is exercised by a single Supreme Court that has final authority over constitutional matters, while judicial review in the UK is exercised by multiple courts that share jurisdiction over constitutional matters with Parliament.

India and Bangladesh also embrace the doctrine of judicial review, embedded within their respective constitutional frameworks. The Indian Supreme Court, with its expansive approach, has used judicial review to uphold fundamental rights and act as a protector of democracy. In Bangladesh, the Supreme Court has played a pivotal role in shaping the country’s constitutional landscape through its rigorous exercise of judicial review.

These differences affect how judicial review operates in practice in terms of its scope, intensity, frequency, etc. For example, judicial review in the US tends to be more expansive and assertive than in the UK, as it can strike down any federal or state law that violates the constitution; apply a strict scrutiny standard to fundamental rights cases; invalidate laws based on abstract principles or values; etc. Judicial review in the UK tends to be more restrained and deferential than in the US, as it can only declare a law incompatible with human rights but not nullify it; apply a proportionality test to human rights cases; respect parliamentary sovereignty and convention; etc.

How Judicial Review Faces Resistance and Criticism?

No system is flawless, and judicial review is not exempt from resistance and criticism. The same is also applicable to Judicial Review. Judicial review is not always respected or accepted by other branches of government or lower courts that are subject to its scrutiny. Sometimes, it can be violated or challenged by political or public pressure that seeks to undermine its authority or effectiveness. Some of the most notorious and controversial cases of judicial review in US history illustrate this phenomenon. For example, Dred Scott v. Sandford (1857), which denied citizenship and rights to African Americans; Korematsu v. United States (1944), which upheld the internment of Japanese Americans during World War II; Bush v. Gore (2000), which decided the outcome of a disputed presidential election; etc.

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Judicial review also faces resistance and criticism from various theoretical perspectives that question its rationale or consequences. Some of these perspectives include judicial activism, judicial restraint, judicial supremacy, etc.

Judicial activism refers to the tendency of judges to use their discretion to make or change laws based on their preferences or values rather than following precedent or original intent.

Judicial restraint refers to the opposite tendency of judges to defer to legislative or executive decisions unless they violate the Constitution or established principles.

Judicial supremacy refers to the claim that judges have exclusive or final authority over constitutional interpretation and enforcement.

These perspectives have different implications for the legitimacy and accountability of judicial review. For example, judicial activism can be seen as enhancing or undermining democracy depending on whether it advances or impedes popular will or minority rights. Judicial restraint can be seen as preserving or abdicating democracy depending on whether it respects or ignores constitutional limits or guarantees. Judicial supremacy can be seen as protecting or threatening democracy depending on whether it ensures checks and balances or creates a tyranny of the majority or minority.

Judicial review is not inevitable or immutable in different legal systems. There are possible alternatives or reforms to judicial review that aim to address some of its problems or challenges to ensure the continued efficacy of this crucial doctrine.  These suggestions range from enhancing judicial transparency and accountability to exploring mechanisms for dialogue and cooperation between the courts and other branches of government. For example, some alternatives include parliamentary supremacy, popular constitutionalism, constitutional amendment, etc.

Parliamentary supremacy refers to giving Parliament absolute power over constitutional matters without being subject to judicial review.

Popular constitutionalism refers to giving citizens direct participation in constitutional interpretation and enforcement through referendums, initiatives, recalls, etc.

Constitutional amendment refers to changing the Constitution through formal procedures that require supermajority approval from different actors. Some reforms include the dialogic model, proportionality principle, constitutional courts, etc.

The dialogic model refers to creating a dialogue between courts and legislatures on constitutional issues through mechanisms such as declarations of incompatibility, suspension of invalidity, legislative override, etc.

The proportionality principle refers to applying a common standard of review to human rights cases that balance the competing interests of individuals and governments based on criteria such as necessity, suitability, least restrictive means, etc.

Constitutional courts refer to establishing specialized courts that deal exclusively with constitutional matters and have the final say over them.

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Conclusion

In conclusion, judicial review stands as a dynamic force in constitutional law, upholding the principles of justice, equality, and the rule of law. Law students must engage with this complex and fascinating doctrine, understanding its mechanisms, analyzing its impact on society, and critically evaluating its strengths and weaknesses. Through further research and reflection, law students can contribute to the ongoing discourse on judicial review, ensuring its continued evolution and efficacy as a cornerstone of constitutional accountability. With enthusiasm and a profound sense of purpose, let us embrace the challenges and opportunities presented by the doctrine of judicial review, unlocking its potential for a just and equitable future.