Tuesday, November 29, 2005

Judicial Review in India and China

Today's New York Times reports on the end of a minor insurrection in which a Chinese judge attempted to invalidate a local law on the grounds that it contravened a national law. I think it is fair to say that it didn't quite make it to the level of a Chinese Marbury vs Madison - she failed to get her reasoning written into law. The contrast with the Indian situation, where since the 1967 decision in Golak Nath vs State of Punjab the Supreme Court has held that even constitutional amendments are justiciable is striking.
PS: A reader asked for an explanation of Golak Nath. Here goes:
Following a slew of constitutional amendments, passed by Parliament, the Indian Supreme Court first articulated, in this case, the position that some aspects of the constitution could not be amended by Parliament (even with the specified procedure) if they tampered with the basis structure envisaged by the founders. The actual judicial history is somewhat complicated and is discussed here but the bottom line is the Indian Supreme Court not only gets to decide the constitutional status of laws but that of constitutional amendments themselves which is a significant check on legislative power. In this sense the Indian Court is perhaps the most powerful court in the world.

1 Comments:

Anonymous Anonymous said...

Can you care explain the indian case you were mentioning??

November 30, 2005 12:11 AM  

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