Abstract

From the age of Justinian code in the West and ‘dharma’ in the East to constitutionalism in today’s times, society has tried to place restrictions on the power of the sovereigns so as to prevent abuse of authority and promote efficiency. Since 1945 democracies around the world have accepted the concept of judicial review as a modern version of such checks and balances on the legislature’s power. Each country has adopted a method of judicial review which suits their own unique history and culture, at the same time emphasising on the ambitions of the common man. This chapter analyses the evolution of the process of judicial review in two such countries, France and India, and examines their current positions. Particular focus will be placed on the French judicial review jurisprudence since the historic Constitutional amendment of 2008 passed by the French legislature which allowed a constitutional challenge to be brought before the Constitutional Council, the highest constitutional authority in France, by any citizen through a procedure known as QPC (question prioritaire de constitutionalité). This has enabled the Constitutional Council (CC in short) to examine already enacted laws with regards to conformity to the constitutional values which was not possible earlier. The author briefly looks at the position of judicial review in France pre-2008 amendment, and a selection of decisions by the CC post-2008 as well. These decisions will be analysed with an intent to determine the constitutional values which the CC is upholding to measure the constitutionality of French legislations. As such, a comparison is made with Indian caselaws in which legislations have been challenged for constitutionality through various judgments over the course of the last 7 years.

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