Systems of Constitutional Review: India, USA, Switzerland and France

Constitutional review (including judicial review) is the power of a court or other body to examine whether laws, executive acts or sometimes constitutional amendments conform to the Constitution, and to invalidate or refuse to apply those that do not. It is the mechanism that makes a constitution supreme.

Classification of systems:

1. American (decentralised/diffuse) model: every court can examine constitutionality during an ordinary case (concrete, a posteriori); the highest court has the final say; the court refuses to apply the unconstitutional law. Countries: USA, India (largely), Canada, Australia, Japan.

2. European/Kelsenian (centralised) model: a special constitutional court has exclusive jurisdiction; designed by Hans Kelsen for the Austrian Constitution of 1920; decisions have erga omnes effect (annulment). Countries: Germany (Federal Constitutional Court, 1951), Italy, Spain, South Africa.

3. Political/preventive model: a political-legal body reviews laws before promulgation – France (Conseil constitutionnel) is the classic example.

4. Parliamentary supremacy with no review of statutes: traditionally the UK, and partly Switzerland for federal laws.

5. Weak-form/"new Commonwealth model" (Stephen Gardbaum): courts review rights but the legislature has the final word (Canada's notwithstanding clause; UK's Human Rights Act; New Zealand).

Other dimensions:

• Abstract review (without a concrete case, at the request of officials) vs concrete review (arising in a real dispute).

• A priori (before a law comes into force) vs a posteriori (after).

• Incidental (raised in a case) vs principal (direct challenge).

• Strong-form (final judicial word) vs weak-form (legislature can respond).

• Counter-majoritarian difficulty (Bickel) – the core theoretical objection: unelected judges overturning the will of elected bodies. Defence: protection of rights and constitutional supremacy (Hamilton, Federalist No. 78 – the judiciary is the "least dangerous" branch, having neither force nor will, but merely judgment).

• Source: not expressly provided in the text; derived from Article III (judicial power), Article VI (supremacy clause) and Marbury v Madison (1803) – Chief Justice John Marshall: it is emphatically the province and duty of the judicial department to say what the law is; an Act repugnant to the Constitution is void. The Court held that part of Section 13 of the Judiciary Act of 1789 was unconstitutional because it expanded the Court's original jurisdiction beyond Article III.

• Diffuse, concrete, a posteriori review: any court can review; the Supreme Court is the final authority; Article III requires "cases or controversies"; the Court does not give advisory opinions (a tradition from the 1793 Correspondence of the Justices and Hayburn's Case).

• Review of state laws and decisions: Fletcher v Peck (1810) (first state law struck down); Martin v Hunter's Lessee (1816); Cohens v Virginia (1821). A federal law was struck down for the first time in Marbury; the second time in Dred Scott v Sandford (1857).

• Cooper v Aaron (1958): judicial supremacy asserted.

• Justiciability doctrines: standing (Lujan v Defenders of Wildlife, 1992), ripeness, mootness, and the political question doctrine (Luther v Borden, 1849; Baker v Carr, 1962; Nixon v United States, 1993).

• Levels of scrutiny: rational basis, intermediate scrutiny, strict scrutiny (footnote 4 of United States v Carolene Products, 1938).

• Certiorari: the Court chooses most of its cases (the "rule of four").

• Review of constitutional amendments: generally the Court does not substantively strike down amendments (National Prohibition Cases, 1920); there is no "basic structure" doctrine.

• Strong-form review with the Supreme Court as the ultimate interpreter; constitutional amendment (Article V) or changes in the Court's composition are the main political responses.

• Source: express constitutional provisions – Article 13 (laws inconsistent with or in derogation of fundamental rights are void), Article 32 (right to constitutional remedies – itself a fundamental right; Dr. Ambedkar called it the "heart and soul" of the Constitution), Article 226 (High Courts – wider, extends to "any other purpose"), Article 131 (original jurisdiction in Centre–State disputes), Articles 132–136 (appeals, special leave), Article 143 (advisory jurisdiction – President's reference), Article 246 and the Seventh Schedule (distribution of powers), Article 254 (repugnancy), Article 368 (amendment).

• Nature: a hybrid – diffuse like the USA but with the Supreme Court at the apex, direct constitutional jurisdiction (Articles 32 and 226) and an advisory jurisdiction (Article 143). It has no separate constitutional court.

• Judicial review of ordinary legislation: grounds – violation of fundamental rights, lack of legislative competence, violation of other constitutional provisions; presumption of constitutionality (Charanjit Lal Chowdhury v Union of India, 1951); proportionality and the "arbitrariness" doctrine (Shayara Bano, 2017).

• Doctrines: pith and substance; colourable legislation; severability (R.M.D. Chamarbaugwala v Union of India, 1957); doctrine of eclipse (Bhikaji Narain Dhakras v State of Madhya Pradesh, 1955: a pre-Constitution law inconsistent with fundamental rights is not dead but "eclipsed", and revives if the inconsistency is removed); doctrine of waiver (Behram Khurshed Pesikaka v State of Bombay, 1955: fundamental rights cannot be waived); prospective overruling (Golaknath, 1967); territorial nexus; harmonious construction; reading down.

• Review of constitutional amendments (basic structure doctrine):

  • Shankari Prasad v Union of India (1951) and Sajjan Singh v State of Rajasthan (1965): Parliament can amend any part, including fundamental rights; an amendment is not "law" under Article 13(2).

  • I.C. Golaknath v State of Punjab (1967): Parliament cannot amend fundamental rights (an amendment is "law"); prospective overruling used.

  • 24th Amendment (1971): added Article 13(4) and amended Article 368, declaring that Article 13 does not apply to amendments.

  • Kesavananda Bharati v State of Kerala (1973): a 13-judge bench by 7:6 held that Parliament can amend any part of the Constitution but cannot alter its basic structure (an idea associated with the German scholar Dietrich Conrad's lectures in India). Basic features include supremacy of the Constitution, rule of law, separation of powers, judicial review, federalism, secularism, democracy, free and fair elections and independence of the judiciary.

  • Indira Nehru Gandhi v Raj Narain (1975): the 39th Amendment invalidated.

  • Minerva Mills v Union of India (1980): struck down parts of the 42nd Amendment (Article 368(4) and (5)); harmony between Fundamental Rights and Directive Principles is part of the basic structure; limited amending power is itself a basic feature.

  • Waman Rao v Union of India (1981): Ninth Schedule laws placed before 24 April 1973 are immune; those after can be reviewed.

  • I.R. Coelho v State of Tamil Nadu (2007): Ninth Schedule laws enacted after 24 April 1973 are open to challenge if they violate fundamental rights or the basic structure.

  • L. Chandra Kumar (1997): judicial review by the High Courts and Supreme Court is part of the basic structure.

  • Supreme Court Advocates-on-Record Association (2015): 99th Amendment struck down.

• Review of executive action: presidential proclamations (S.R. Bommai, 1994), ordinances (Krishna Kumar Singh v State of Bihar, 2017), and administrative action generally.

• Nature: strong-form review with the Supreme Court as the final authority; criticised at times as overreach.

Switzerland is distinctive: judicial review is limited because of its commitment to popular sovereignty and direct democracy.

• Federal Supreme Court (Bundesgericht), Lausanne: the highest court; the system also includes the Federal Criminal Court (Bellinzona), Federal Administrative Court (St. Gallen) and Federal Patent Court.

• Cantonal laws: the Federal Supreme Court can review cantonal laws and acts for compatibility with the Federal Constitution, federal law and international law (both abstract review directly within a time limit after promulgation, and concrete/incidental review). This protects federal supremacy.

• Federal laws: under Article 190 of the Federal Constitution (1999), the Federal Supreme Court and other authorities must apply federal acts and international law. So federal statutes cannot be set aside for being unconstitutional – a result of the principle that the people (through referendum) and Parliament are sovereign. However, courts may interpret federal laws in conformity with the Constitution, and in practice give priority to international human rights law (the Schubert practice, 1973, and the PKK case, 1999, on the primacy of the European Convention on Human Rights).

• No separate constitutional court and no judicial review of federal acts. Instead, democratic controls operate: federal acts are subject to the optional referendum (50,000 signatures within 100 days); constitutional amendments require a mandatory referendum with a double majority (majority of the people and the majority of cantons – Ständerat/Ständemehr); a popular initiative (100,000 signatures within 18 months) can propose a partial revision of the Constitution (Article 139); an initiative can be declared invalid only if it violates unity of form or matter, or mandatory provisions of international law (jus cogens).

• Why limited review? The democratic tradition of 1848; trust in the referendum as the guardian; federal laws are seen as the people's will. Proposals to introduce constitutional jurisdiction over federal laws (including in the 1999 revision) were rejected.

• Federal Council (executive) and Federal Assembly (Parliament) carry out internal checks (e.g., the Federal Office of Justice advises on constitutionality).

France historically rejected judicial review of statutes (law as an expression of the general will – Rousseau; distrust of judges after the Revolution; fear of gouvernement des juges). The Fifth Republic (1958) created a distinctive model.

• Conseil constitutionnel (Constitutional Council) – Title VII, Articles 56–63 of the 1958 Constitution.

  • Composition: nine members serving non-renewable nine-year terms, one-third renewed every three years. The President of the Republic, the President of the National Assembly and the President of the Senate each appoint three. Former Presidents of the Republic are ex officio members for life (Article 56). Members are often experienced politicians and jurists, not necessarily judges.

  • A priori (preventive) review: before promulgation; mandatory for organic laws (lois organiques) and the standing orders of Parliament (Article 61(1)); optional for ordinary laws – referred by the President of the Republic, the Prime Minister, the Presidents of the two Houses, or (since the 1974 reform) 60 deputies or 60 senators (Article 61(2)). Treaties are checked under Article 54. The Council normally decides within one month.

  • A posteriori review – Question prioritaire de constitutionnalité (QPC): introduced by the Constitutional Law of 23 July 2008 (in force 1 March 2010; Article 61-1). A litigant can raise before any court a claim that a statutory provision violates rights and freedoms guaranteed by the Constitution; the Conseil d'État or Cour de cassation filters and refers it. A provision declared unconstitutional is repealed from the date of publication of the decision or a date fixed by the Council (Article 62).

  • Binding effect: Article 62 – an unconstitutional provision cannot be promulgated or implemented; decisions are not subject to appeal and bind all public, administrative and judicial authorities.

  • Decision of 16 July 1971 (Freedom of Association): a landmark – the Council struck down part of a statute for the first time and gave constitutional status to the Preamble of the 1958 Constitution, thus incorporating the 1789 Declaration of the Rights of Man and the Citizen and the Preamble of the 1946 Constitution, forming the bloc de constitutionnalité. After this, the Council became a protector of rights.

  • Other functions: supervises presidential elections and referendums, adjudicates disputes on parliamentary elections (Articles 58–60), and polices the division between law and regulation (Articles 37 and 41).

  • Limits: the Council does not review laws adopted by referendum (Decision of 6 November 1962) and, in principle, constitutional amendments (Decision of 26 March 2003); it does not check conventionality (compatibility of statutes with treaties) – this is done by ordinary and administrative courts (Decision of 15 January 1975 on abortion; Cour de cassation, Jacques Vabre (1975) and Conseil d'État, Nicolo (1989) under Article 55).

• Administrative courts: the Conseil d'État reviews the legality of administrative acts (decrees and regulations) – the French dual system (droit administratif).

• Features: semi-political composition; mainly preventive and abstract; erga omnes effect; opposition referrals since 1974 greatly enhanced its role.