Think Paper: Constitutional Judicial Review (By Paridhi Singh, BA.LLB 2011, Student ID: 20110178)
“It is emphatically the province and duty of the judicial department to say what the law is.”
This statement comprises part of Marshall’s famous declaration in Marbury v Madison, which gives a
grand articulation to the Court’s greatest power, namely judicial review, which stipulates that only the
Supreme Court can say what the Constitution is. In these passages I’ll seek to undertake the exercise
of addressing a singular inquiry, for paucity of word limit, woven in the larger fabric of the crossanalysis of the contents of the assigned readings on this topic. The inquiry being, ‘Is Constitutional
Judicial review, an essential feature of Constitutionalism?’.
Firstly, there needs to be a linkage between judicial review and constitutionalism which is somewhat
prevalent as an undercurrent in few readings which state that there exists a relationship between
conflict, judicial review and judicial activism. In the context of rifted democracies and democracies
undergoing transition or social changes, judicial review serves (and also emerged) to treat the
Constitution as a ‘living instrument’ and through that process, validate the constitution as a positive
law capable of malleability to the extent, that those interpretations are an embodiment of deliverance
of rule of law in action. In the context of India and South Africa (re Death Penalty verdict in SA) more
palpably, CJR became the tool for the courts to practice reflexive constitutionalism, thereby giving us
intricate insights insight into the linkages between CJR and constitutionalism.
Secondly, through the ideas of ‘enduring values’ in the American Legal context and of ‘Asian Values’ in
the context of East Asian Constitutionalism, it is indeed evident that judicial approaches to CJR are
capable of diverse manifestations including ‘indigenization’. This comes with the internalization of CJR
needing judicial restraint, in order to not undermine the precariously perched legitimacy of Courts,
often dependent on their perception of being above the ordinary politics and yet being fully able and
willing in making silent or subtle adjustments to adapt to changes outside. Interestingly, in one of the
readings CJR rises to the aid of constitutionalism in the case of Israeli politics, which comprises a
political will oscillating between the ethos of a democratic state and a Jewish state. This begs
consideration of the perspective that the availability and modus operandi adopted by courts to utilize
CJR is perhaps an exercise of will of a constitutionalism choke-held by a fragmented political system
and a natural manifestation of such circumstances (void-filling function) than being an exercise of
reflective politics of judicial subversion of parliamentary sovereignty.
To take further, the various contexts of CJR under the theme of judicial legitimacy vis-a-vis efficacy,
one of the readings mentioned that Asian countries including South Korea set the record for deeming
unconstitutional up to a third of cases for CJR, which came before the Court but while being cautious
in their approach (like considering actively the majoritarian views and potential reception of
proposed decision), than being ‘too reactive’. However, I find the proposition and observation hard to
reconcile for the apparent tension in making those claims. I would like to assert here, that perhaps by
way of studying CJR and other judicial decisions, as separately there is a tendency is casting overzealous conclusions with regards to what would make CJR related judgments more acceptable. Rather,
I would like to conclude that CJR decisions, especially in the context of India, have been rendered
successful perhaps because they had in common what all-sound judicial decisions have, embodiment
of constitutionalism, which gives voice to rule of law, while preserving the spirit of the constitutional
text and a well-reasoned forensic analysis of judiciary into the subject matter of the CJR.
To conclude, l suppose it is essential to reduce constitutionalism in its most bare naked state and then
inquire if in that pristine state, is CJR an inalienable feature of constitutionalism. On a personal note,
relationship between state subjects and their constitution is the essence of constitutionalism and if
CJR can bridge and strengthen that bond, as it has in that past while meaningfully retaining the spirit
of the constitutional text, than it is perhaps the most distinct feature which can ornament
constitutionalism in its most basic form and sustain it, irrespective of turbulent waves of sociopolitical changes and global transitions which effect local values and living.