A study of the American Judicial Review system shows that since the last 209 years, the US Supreme Court continues to constitutionally determine the validity and application of the laws passed by its country’s legislators.
Not different is the case in India, Germany and other countries, where their apex courts have succeeded in establishing their pre-eminence over both the executive and legislative branches of the government by striking down their orders.
Talking of the United States first, in line with Article III (Section 2) of the 1787 American Constitution, the Supreme Court’s decision in 1803 to declare an act of Congress unconstitutional came in the oft-quoted Marbury versus Madison case during President Thomas Jefferson’s reign, had actually set an oft-quoted legal precedent.
In the Marbury versus Madison case, Chief Justice John Marshall had struck down the unconstitutional acts of the US legislators, showing it to the world that the judges enjoyed exclusive judicial review powers to determine which laws the American Congress actually intended to apply to any given case.
To the sheer dismay of President Jefferson, CJ Marshall had termed the act of William Marbury, one of the 58 infamous ‘Midnight Judges’ appointed by former President John Adams towards the end of his tenure for his support, as void.
But this case was not the end of Marshall’s efforts to rewrite the American jurisprudence. The US Supreme Court’s first decision to declare an Executive Branch action as unconstitutional was announced in the Flying Fish case of 1804. The Flying Fish Case had involved an order issued by President John Adams in 1799 during America’s war with France, whereby the Navy was authorized to seize ships bound for French ports.
After a Navy Captain in December 1799 seized a Danish vessel called “Flying Fish,” pursuant to Adams’s order, the owners of the ship sued the captain for trespass in US Maritime court.
On appeal, Chief Justice Marshall rejected the captain’s argument that he could not be sued because he was just following presidential orders.
The Court noted that commanders “act at their own peril” when they obey invalid orders, ruling that the US President’s order was outside his powers. Within a couple of years, CJ John Marshall’s continued endeavours for judicial supremacy had infuriated President Jefferson.
The Supreme Court had also gone on to exonerate former Vice President Aaron Burr in a treason case framed against him at the behest of the Jefferson regime.
After passing these orders in quick succession, Chief Justice Marshall thus had to encounter an extremely harsh criticism from President Jefferson and the incumbent Congress legislators, compelling the most respected top judge in history to observe,” If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. Hence, the judges would declare it void. To what quarter will you look for protection from an infringement on the Constitution?”
The US Supreme Court then never looked back after issuing these two afore-mentioned historic verdicts.
In Gibbons versus Ogden case of 1824, the Apex Court went on to overturn a monopoly granted by the New York state to certain steamships operating between New York and New Jersey. This verdict ended many state-granted monopolies.
President Andrew Jackson was also infuriated when his policy regarding American Indians, which involved the ethnic cleansing of several Indian tribes called the Cherokees, was termed unconstitutional by CJ Marshall.
In the Sheldon versus Sill Case (1850), also surfacing during President Jackson’s era, Chief Justice Roger Taney took the Congress head on by holding that the legislators could not limit the subjects the Supreme Court might hear.
In the Watergate scam, the Court ruled against President Nixon, despite his claims that an “Executive Privilege” shielded him from all legislative oversight.
In the United States versus Lopez case of 1995, Rehnquist’s Court struck down a law on grounds that Congress had acted beyond its powers.
In the Clinton v Jones sexual harassment case (1997), the court rejected President Clinton’s argument that the Constitution protected him from suits dating back to his pre- presidency period.
In the United States versus Morrison case of 2000, CJ Rehnquist struck down the civil damages portion of the Violence against Women Act of 1994, holding that the Congress lacked authority to enact a law that created a federal remedy for gender-motivated violence.
In both Kimel versus Florida Board of Regents case of 2000 and Board of Trustees of the University of Alabama versus Garrett case of 2001, the Court observed that Congress had exceeded its powers to enforce the Equal Protection Clause.
After the US, the country where Judicial Review powers are most extensively exercised by court judges is India.
The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution.
If the laws made by parliament violate any provision of the constitution, the court has power to declare such a law invalid or ultra vires of the Constitution.
The Indian Supreme Court judgment in the Kesavananda Bharati case of 1973 established the “Doctrine of Basic Structure.” According to this verdict, the Indian Constitution has certain basic features which hold a transcendental position and which cannot be altered either by the parliament or Supreme Court.
The judgment stated that although these amendments were constitutional, the court still reserved for itself the discretion to reject any changes made by the Parliament, through which the Constitution’s basic structure was altered.
Despite the fact that the Indian Supreme Court enjoys original, appellate and advisory jurisdiction, questions have been raised since 1951 about the scope of the constitutional amending process contained in Article 368 of the Indian Constitution.
After the courts had overturned state laws redistributing land from landlords on the grounds that the laws violated the land owners’ fundamental Rights, the Parliament passed the first Amendment in 1951, fourth in 1955 and 17th amendment in 1964 to protect its authority to implement land redistribution.
The Supreme Court countered these amendments in 1967 in the Golaknath versus State of Punjab case when it ruled that the Parliament did not have the power to abrogate fundamental rights, including the provisions on private property.
To counteract against the Golaknath case decision, former Premier Indira Gandhi then made a series of attempts through various constitutional amendments to establish Supremacy of Parliament over judiciary.
The Indian Supreme Court again declared that the Parliament could not use its amending powers to damage, emasculate, destroy, abrogate or alter the ‘basic structure’ of the Constitution.
This decision is not just a landmark in the evolution of constitutional law, but proved a turning point in legal history.
In 1970, the Indian Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by parliament, besides rejecting the presidential order of September 1970 which abolished the titles, privileges and privy purses of the former rulers of India’s old princely states.
In reaction to Supreme Court decisions, the Parliament empowered itself to amend any provision of the constitution, including the Fundamental Rights.
In Indira Gandhi versus Raj Narayan case of 1975, the Supreme Court applied the theory of basic structure and observed that the amending power of the parliament only destroyed the ‘basic feature’ of the Constitution.
But despite being bogged down during the Indian Emergency period of 1975-77, in which Indira Gandhi had even tried to dishearten the highest judiciary by appointing a junior judge as the chief justice superseding senior judges like Justice Khanna, the Apex Indian Court did not cease to exercise its power of Judicial Review.
For example, in the Minerva Mills case of 1980, the Indian Supreme Court again struck down an amendment on the ground that destroyed the basic structure of the Constitution.
In Sawhney versus Union of India case, popularly known as the Mandal Commission case, the Supreme Court ruled that the parliament had amended the constitution beyond its scope.
In its 2007 judgment in the Coelho versus Tamil Nadu case, the Indian Supreme Court reaffirmed the basic structure doctrine by ruling that a constitutional amendment entailing the violation of any fundamental rights can be struck down depending upon its impact and consequences.
The judgment clearly imposed further limitations on the constituent power of parliament with respect to the principles underlying certain fundamental rights.
In Germany, the Federal Constitutional Court is empowered with reviewing acts of the Federal Republic Congress (the Bundestag) for their constitutionality.
The Federal Constitutional Court of Germany can even review and reject constitutional amendments on the grounds that they are contradictory to the rest of the Federal Republic Constitution. This even goes beyond the powers of the US Supreme Court and the Indian Supreme Court in many ways.
The German Supreme Court had twice struck down the legislation legalizing abortion in 1975, besides having banned the Socialist Reich Party (a neo-Nazi party) and the Communist Party from functioning during the 1950s.
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