INTRODUCTION
The idea of constitutional supremacy stems from the broader concept of the rule of law, which asserts that the law should govern a nation rather than arbitrary decisions of individual leaders. Constitutional supremacy takes this idea further by ensuring that the constitution itself is the supreme legal authority.1Judicial review in India is the judiciary’s power to examine the constitutionality of legislative acts and executive orders, declaring them void if they violate the constitution. It ensures constitutional supremacy, rule of law, and protects fundamental rights. This power is exercised by the Supreme Court and High Courts under Articles 32 and 226.
In democratic countries, the judiciary is given a place of pride, honour and dignity. The role of the judiciary in a democracy is that of multi-faced activism and creativeness. A democratic society lives and swears by certain values – individual liberty, human dignity, rule of law, constitutionalism, limited government etc. A well organised, strong and impartial judiciary is most essential to achieve these values on which a democratic system thrives. It is the function of the courts to infuse these basic values in the country’s legal and constitutional system. Form this point of view, the role of the judiciary in a democracy becomes crucial and significant.2
In this framework, judicial review acts as a key instrument for maintaining constitutional balance and protecting fundamental rights. However, in recent decades, the scope of judicial review has expanded significantly, particularly in countries like India, where the judiciary has increasingly intervened in legislative and executive domains through mechanisms such as Public Interest Litigation and judicial activism. This expansion raises critical concerns regarding the limits of judicial power and its compatibility with the doctrine of separation of powers. While judicial intervention has strengthened rights protection and accountability, it has also led to debates on judicial overreach and democratic legitimacy. The core research problem, therefore, lies in examining whether the expanding scope of judicial review enhances constitutional supremacy or disrupts the institutional balance among the organs of government.
CONCEPT OF CONSTITUTIONAL SUPREMACY
The concept of constitutional supremacy has its roots in the development of constitutional governance and the rule of law. It reflects the idea that a constitution is the highest legal authority in a political system, providing a framework for the functioning of government and the protection of individual rights. The evolution of constitutional supremacy is closely tied to the historical development of political systems, the rise of democratic ideals, and the need to limit the powers of rulers and government institutions.3 Over centuries, the principle of constitutional supremacy has emerged as a defining feature of modern democratic governance, influencing legal systems and political structures across the world.4
Constitutional supremacy refers to the idea that the Constitution is the ultimate law of the land and that all branches of government, including the legislative, executive, and judicial branches, are subject to its provisions and receive their authority from it. Judicial scrutiny renders any legislation or action that violates the Constitution null and void. Parliamentary supremacy states that the Parliament is the ultimate legislative body and that courts cannot nullify its legislation. In the UK, this idea has long been adhered to.
India’s constitutional framework is based on the principle of constitutional supremacy. The Indian Constitution, adopted in 1950, is the longest written constitution in the world. It establishes India as a sovereign, socialist, secular, and democratic republic, with a clear separation of powers among the legislative, executive, and judicial branches. The Constitution guarantees fundamental rights, including equality before the law, freedom of speech and expression, and protection against discrimination.
The Supreme Court of India plays a central role in maintaining constitutional supremacy through its power of judicial review. The landmark case Kesavananda Bharati v. State of Kerala (1973) established the doctrine of the basic structure, which holds those certain fundamental features of the Constitution—such as democracy, secularism, judicial independence, and the rule of law—cannot be amended or destroyed by Parliament. This doctrine limits the power of the legislature and ensures that constitutional supremacy is preserved.
The Indian judiciary has also been proactive in expanding the scope of fundamental rights through progressive interpretations of the Constitution. In Maneka Gandhi v. Union of India(1978), the Supreme Court interpreted the right to life and personal liberty to include the right to dignity and freedom from arbitrary state action. The judiciary has further recognized the right to privacy, the right to education, and environmental protection as essential components of constitutional rights. Through public interest litigation (PIL), Indian courts have enhanced access to justice and held the government accountable for constitutional violations
EVOLUTION OF JUDICIAL REVIEW
Judicial review implies the supremacy of the law. However, in a country with a written constitution, judicial review implies that the Constitution is supreme. In a society that respects the rule of law, the law has always recognized the court’s power to review legislative and executive activities. In every civilization, justice and power are at odds. Everywhere there is power, it gets abused. Based on this assumption, the court must unavoidably evaluate the legitimacy of legislation, executive authority rulings, and Administrative Tribunal decisions in order to ensure adequate protection in defending persons’ rights.5 The supremacy of law and the Constitution will inevitably be in danger when the legislature denies the judiciary the authority of judicial review in any way. However, under the influence of the welfare philosophy The legislative tendency is to give administrative decisions more latitude and judicial review less. The public fears administrative dictatorship when such judgments are excluded from judicial review.6
A straightforward way to understand the connection between Marbury v. Madison and the contemporary practice of judicial review is to examine how academics currently interpret the case. This case, in which the Court established its authority to declare laws unconstitutional, is traditionally regarded as the cornerstone of judicial review. Nonetheless, a number of contemporary academics contend that the ruling was impacted by institutional and political factors in addition to legal reasoning. They contend that John Marshall purposefully employed the case to bolster the judiciary’s power.7
Our understanding of contemporary judicial review is altered by this critical or “realist” perspective. The idea that courts now also make decisions influenced by power or policy does not appear out of the ordinary or illegitimate since even Marbury v. Madison 8involved political factors. Indeed, it implies that judicial review has always been a combination of politics and the law. As a result, contemporary judicial review procedures are not essentially different from those of Marbury; rather, they are a continuation of the same tradition in which courts interpret the Constitution while simultaneously determining the institutional role of judicial review based on his conception of democracy. One widely held belief holds that democracy basically entails giving everyone’s concerns equal weight and responsiveness when discussing laws and social policies.9
Although it is compatible with many philosophical perspectives, this conception of democracy is most strongly linked to utilitarianism. There is nothing inherent in utilitarianism that would need majoritarian legislative processes; social and historical contexts determine whether democracy—which is defined as equal representation and majority rule—is a suitable system of institutions. Furthermore, as is well known, majority voting processes as they have historically been characterized are inadequate to capture the intensity of people’s preferences, which is crucial for utilitarian calculations.10
EXPANDING SCOPE OF JUDICIAL REVIEW IN MODERN DEMOCRACY:
The concept of judicial review pertains to the authority of the courts to examine and assess the constitutionality of decisions rendered by other branches of government. The Indian Constitution specifically addresses the concept of judicial review in Articles 131, 322, 131–1363, 1434, and 226–2465. The power of judicial review plays a crucial role in safeguarding against governmental overreach and upholding the rights of both individuals and collectives. Judicial review is a mechanism employed by courts to nullify government actions that are deemed unlawful and laws that are deemed unconstitutional. Additionally, it serves to enforce compliance with the constitution by compelling the government to operate within its prescribed parameters. The Supreme Court of India, as the apex judicial body, possesses the jurisdiction to scrutinise all governmental actions, encompassing those undertaken by the legislative and executive branches. Furthermore, it should be noted that the High Courts of each state possess the jurisdiction to engage in the process of judicial review with regards to actions undertaken by state governments. Courts possess the authority to declare laws or governmental actions as unconstitutional due to various justifications.
Economic and social rights, regarded as inherent to all individuals, encompass the capacity to live a dignified existence and engage actively within the community. Encompassed within these entitlements are provisions for social security, labour protections, as well as the availability of housing, sustenance, water, healthcare, and education. Civil and political rights are often regarded as being of greater fundamental significance due to their role in safeguarding our essential liberties. However, it is crucial to acknowledge that both economic and social rights hold equal significance as they guarantee individuals’ access to essential necessities and enable their active participation within society. The subsequent items represent some of the most
In recent times, the Supreme Court has rendered verdicts that suggest its inclination to reassess economic and social policy decisions. The case of Navtej Singh Johar v. Union of India1 resulted in the court’s invalidation of a provision that rendered same-sex relationships as criminal offences. As per the court’s ruling, the legislation was found to be in contravention of the privacy and equality principles enshrined in the Constitution.
In the case of A.P. Pollution Control Board v. M.V. Nayudu2, the court issued a directive to the Andhra Pradesh government, mandating the closure of multiple enterprises that were found to be causing pollution. The Environmental Control Board (ECB) is a regulatory body responsible for overseeing and enforcing environmental regulations and policies. The court rendered a decision that concluded the insufficiency of the government’s environmental protection measures and their infringement upon the right to life.
JUDICIAL ACTIVISM VS JUDICIAL OVERREACH:
Judicial activism is a legal strategy in which judges are thought to have a greater inclination to discuss constitutional problems and then invalidate legislative or executive actions. Instead of deferring to other political bodies or earlier court decisions, judges are exercising their own interpretations of constitutional requirements.11 Additionally, judges take into account broader societal consequences in their reasoning, going beyond the boundaries of pertinent legislative requirements. The concept of judicial activism has significantly influenced the development of judicial review within the Indian legal system, particularly with relation to economic and social liberty. Protecting individual rights and promoting socioeconomic equity are the two main goals of judicial activism in India. 12The courts have effectively responded to issues of inequity, discrimination, and insufficient implementation of social assistance programmes through the application of judicial activism.Speaking on the issue, Justice V R Krishna Iyer opined that ‘the judiciary now functions without check, even illegally and corruptly In 2010, a former law minister declared that eight of sixteen former Chief Justices of India (CJI) were corrupt, and in 2014 a former Supreme Court judge alleged that three former CJIs made ‘improper compromises’ to let a corrupt High Court judge continue in office.
In an interview with Chandrani Banerjee, former Chief Justice V N Khare said, “Judges are only human, like us.” They are members of the same community. Our culture is all about achieving success quickly. People take shortcuts. Even the judges13
CHALLENGES TO CONSTITUTIONAL SUPREMACY AND JUDICIAL REVIEW
In contemporary democracies, constitutional supremacy faces a number of significant obstacles. One significant issue is the legislature’s and executive branch’s growing propensity to use their authority beyond what is allowed by the constitution, often by enacting legislation or acting in ways that could violate fundamental rights. The judiciary must step in in these circumstances, yet doing so frequently causes friction between the government’s branches. Another issue is judicial overreach, where judges may intrude into matters that belong to the legislature or executive branch in an effort to uphold constitutional principles. This sparks discussions about democratic legitimacy and the division of powers.14
On the other hand Expanding the scope of judicial review to encompass economic and social liberties poses a formidable challenge. The conceptualization of economic and social liberties can present challenges in terms of establishing a precise definition. There exists a lack of consensus regarding the interpretation of these liberties, which are commonly characterised by their intricate nature.15 Hence, the task of courts in ascertaining the potential infringement of an individual’s economic or social rights by a specific government action may pose challenges3. The enforcement of economic and social rights can present significant challenges. The government is often called upon to safeguard these essential rights via many means, including the establishment of infrastructure and the provision of social services. It is conceivable that the judiciary may have difficulties in overseeing and implementing this. Through the broadening of the jurisdiction of judicial review, the courts has the potential to provide fair and just possibilities for individuals to attain a dignified existence and engage meaningfully in the affairs of society.16 The inclusion of economic and social rights into judicial analysis presents inherent challenges and possible consequences. There are many who argue that this might potentially lead to occurrences of judicial activism or cases when judges exceed their lawful powers. There are others who argue that an increase in government spending on social services might have negative consequences for the economy. Nevertheless, the benefits of integrating economic and social rights into the process of judicial review surpass any potential drawbacks. Through the act of holding the government responsible for its failure to safeguard fundamental rights, the legal system has the capacity to attain social justice and notably augment the welfare of a substantial populace.
CONCLUSION & SUGGESTIONS
In conclusion, constitutional supremacy, which ensures that all state entities function within the parameters established by the Constitution, remains the cornerstone of modern democratic administration. The judiciary has been instrumental in preserving this dominance in countries like India through the system of judicial review, which has evolved dramatically from a limited procedural function to a dynamic and substantive weapon for defending fundamental rights and advancing social justice. Thanks to important developments beginning with Marbury v. Madison and subsequent constitutional amendments like the Basic Structure Doctrine in Kesavananda Bharati v. State of Kerala, the court has solidified its position as the guardian of the Constitution.
But the growing reach of judicial review has also sparked serious worries about judicial overreach and possible imbalances between the legislative, executive, and judicial branches. Even though judicial activism has greatly aided in the defines of underrepresented groups and the upholding of socioeconomic rights, overzealous intervention could jeopardize democratic ideals and the separation of powers theory. As a result, a fair and moral approach is crucial.
There is an urgent need for precise judicial rules that specify the extent and boundaries of judicial action in order to guarantee the efficient operation of constitutional democracy. To preserve institutional harmony, it is also necessary to promote improved cooperation and respect across the various branches of government. In the end, judicial review must be used with both bravery and moderation—strong enough to uphold constitutional principles while being careful enough to respect democratic limitations. In the long run, such a calibrated strategy will uphold constitutional supremacy, improve the rule of law, and increase public confidence in institutions.
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Footnotes
1. A.V. Dicey, Introduction to the Study of the Law of the Constitution (1st edn, Macmillan 1885).
2. Dynamic Aspects of the Rule of Law in the Modern Age, Conclusions and Resolutions made at the South-East Asian and Pacific Conference of Jurists in Bangkok, Thailand, Feb. 15-19, 1965, (1965) fl. of the Int’l Comm. of Jurists.
3. The Supreme Court and Constitutional Democracy By John Agresto, Cornell University press. Ithaca and London
4. H. KELSEN, GENERAL THEORY OF LAW AND STATE 382 (1945)
5. Patricio Navia & Julio Ríos-Figueroa, The Constitutional Adjudication Mosaic of Latin America, 38 Comp. Pol. Stud. 189, 193 (2005); David Bushnell & Neil Macauley, The Emergence of Latin America in the Nineteenth Century (1994).
7. See generally ROBERT LOWRY CLINTON, MARBURY V. MADISON AND JUDucIAL REVIEW 6 (1989).
8. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
9. Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” (1957) 6 Journal of Public Law 279.
10. John Ely’s conception of democracy and judicial review. On Ely’s affinities with utilitarianism, see his Democracy and Distrust (Cambridge: Harvard University Press, 1980), pp. 187, n. 14 and 237-38, n. 54; see also his, ‘Constitutional Interpretivism, Its Allure and Impossibility’, Indiana Law Journal 53 (1978
11. Santanu Sabhapandit, The public-private distinction in judicial review: a comparative analysis of India and England, 20 Oxford U. Commw. L.J. 261 (2020).
12. Isha Tirkey, ‘Judicial Accountability in India: Understanding and Exploring the Failures and Solutions to Accountability’ (2011) Centre for Civil Society 247 accessed 15 November 2021
13. Chandrani Banerjee Interviews V N Khare, ‘Corruption is Rampant in the Lower Courts’ Outlook (09 July 2012) accessed 15 November 2021
14. Yuval Eylon & Alon Harel, The Right to Judicial Review, 92 V A. L. R EV. 991 (2006); Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial Review, 2 J. L EGAL A NALYSIS 227 (2010)
15. James E. Fleming, Judicial Review without Judicial Supremacy: Taking the Constitution Seriously Outside the Courts, 73 F ORDHAM. L. R EV. 1377, 1378–1379 (2005) (giving examples of such theories); Scott E. Gant, Judicial Supremacy and Nonjudicial Interpretation of the Constitution
16. For the development of that view, see, e.g. ., L ARRY D. K RAMER, T HE P EOPLE T HEMSELVES: P OPULAR C ONSTITUTIONALISM AND J UDICIAL R EVIEW (2004); Rachel E. Barkow, More Supreme than Court—The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. R EV. 237 (2002). For a similar, and critical, position, in a comparative context, see R AN H IRSCHL, T OWARDS J URISTOCRACY: T HE O RIGINS AND C ONSEQUENCES OF THE N EW C ONSTITUTIONALISM (2004)