American Constitution: Salient Features

American constitution features are studied in the UPSC syllabus less for the American document itself than for what it lent to constitutions written afterward, above all to India's. Two contributions stand out: the American Constitution is the source of the very idea of judicial review, and it protects individual rights through a 'due process of law' standard that is wider than anything the Indian Constitution's text contains. Understanding both is essential to understanding why India's own judiciary later had to build a doctrine — the basic structure doctrine — that the American text never needed.

Judicial Review: An American Invention Without an American Textual Basis

The American Constitution does not, in so many words, grant its courts the power to strike down a law as unconstitutional. That power was established by the US Supreme Court itself in Marbury v. Madison (1803), widely regarded as the case that first propounded the doctrine of judicial review. Chief Justice John Marshall held that it is the province of the judiciary to say what the law is, and that a legislative act repugnant to the Constitution is void — meaning courts may examine the constitutionality of laws and refuse to enforce those that conflict with the Constitution. This makes judicial review a judge-made feature of the American constitutional system: the practice long predates, and in fact inspired, its use elsewhere, including in India's Constitution.

Due Process of Law: The American Standard for Testing State Action

The second salient feature is the American guarantee of 'due process of law' against arbitrary action by the state. This standard gives American courts considerably wider room than a plain procedural check: a law can be struck down not merely because the procedure followed in enacting or applying it was flawed, but because the law itself is judged substantively unreasonable or unjust. In other words, due process lets courts scrutinise both the substance of a law and the procedure behind it, giving the American judiciary a broader canvas for protecting citizens' rights than a court confined to checking procedural regularity alone.

The Indian Constitution deliberately did not adopt this exact phrase. In its place, the framers wrote 'procedure established by law,' a narrower formulation that, on its face, asks only whether a law was made through the correct legislative procedure — not whether the law's content is fair or reasonable. This textual choice is the starting point for comparing how far judicial review reaches in the two systems.

Due Process vs Procedure Established by Law

Why India Went a Different Route: The Basic Structure Doctrine

Because the Indian Constitution's text offers judicial review a narrower foothold than the American 'due process' clause does, the Indian Supreme Court eventually built its own, home-grown safeguard rather than relying on due-process-style substantive review. In Kesavananda Bharati v. State of Kerala (1973), a 13-judge Full Bench held that certain basic features of the Constitution — including sovereignty and territorial integrity, the federal system, parliamentary government, and judicial review itself — cannot be abrogated even by a constitutional amendment passed under Article 368. An amendment that damages the basic structure is treated as ultra vires despite Article 368's wide amending power, and judicial review was specifically identified as a basic feature precisely so that Parliament cannot pass a law or amendment that shuts courts out of examining constitutional amendments.

This doctrine was tested and reaffirmed in Minerva Mills v. Union of India (1980), where the Supreme Court struck down clauses inserted by the 42nd Amendment into Article 368 that had tried to place constitutional amendments beyond judicial scrutiny altogether. The Court held that a limited amending power, judicial review, and the balance between Fundamental Rights and the Directive Principles are themselves basic features that Parliament cannot erase.

Judicial review's status as a basic feature has continued to matter in more recent disputes as well. Under Article 124, the appointment of Supreme Court judges must follow the recommendation of the Chief Justice of India; when Parliament sought to replace this with a National Judicial Appointments Commission, a five-judge bench declared the NJAC unconstitutional, holding that it violated the independence of the judiciary and the separation of powers — both treated as core basic features flowing from the same judicial-review lineage that Kesavananda Bharati protected.

The Comparative Takeaway

The American Constitution's salient contribution to comparative constitutional law, then, is twofold: it originated judicial review as a judicially self-asserted power, and it built rights protection around a wide 'due process' standard. India adopted the underlying idea of judicial review but kept a narrower textual test — procedure established by law, and three specific grounds of executive challenge — and compensated for that narrower text by developing the basic structure doctrine as an independent, judge-made limit on the amending power itself.

UPSC Relevance

Prelims

• Marbury v. Madison (1803) is the case credited with first propounding judicial review, decided under Chief Justice John Marshall.
• 'Due process of law' (USA) is broader than 'procedure established by law' (India) — due process permits review of both substance and procedure.
• An executive order in India can be challenged mainly on three grounds: infringement of Fundamental Rights, lack of competence of the framing authority, or repugnancy to constitutional provisions.
• Kesavananda Bharati (1973) held judicial review to be part of the Constitution's basic structure.

Mains

• Compare the scope of judicial review under the American 'due process of law' standard with India's 'procedure established by law,' and explain why India's judiciary developed the basic structure doctrine.
• Discuss how judicial review, though borrowed in concept from the American constitutional experience, was entrenched in India through case law (Kesavananda Bharati, Minerva Mills) rather than express constitutional text.

FAQ

Q1. Which case first established judicial review in the American constitutional system? Marbury v. Madison (1803), decided by the US Supreme Court under Chief Justice John Marshall, first propounded the power of courts to examine the constitutionality of laws.

Q2. What is the difference between 'due process of law' and 'procedure established by law'? Due process of law (USA) lets courts test a law on both substantive and procedural grounds; procedure established by law (India) is a narrower test focused on whether the correct legal procedure was followed.

Q3. On what grounds can an executive order be challenged in India? Mainly on three grounds: that it infringes Fundamental Rights under Part III, that it is outside the competence of the authority that framed it, or that it is repugnant to constitutional provisions.

Q4. Is judicial review mentioned explicitly in the American Constitution's text? No. It was established through judicial interpretation in Marbury v. Madison (1803) rather than by an express constitutional provision.

Q5. How does India's basic structure doctrine relate to judicial review? Kesavananda Bharati (1973) held judicial review to be a basic feature of the Constitution that cannot be removed even by constitutional amendment, a position reaffirmed in Minerva Mills (1980) and in the judgment striking down the NJAC.

Quick Revision

• Marbury v. Madison (1803) — origin of judicial review; Chief Justice John Marshall.
• American Constitution's judicial review has no express textual basis; it is judge-made.
• USA: 'due process of law' — tests both substance and procedure.
• India: 'procedure established by law' — narrower, procedure-focused test.
• India's executive-order challenge grounds: violates Fundamental Rights / authority lacked competence / repugnant to Constitution.
• Kesavananda Bharati (1973) — judicial review held to be part of the basic structure.
• Minerva Mills (1980) — struck down 42nd Amendment clauses ousting judicial review of amendments.
• NJAC judgment — struck down for violating judicial independence and separation of powers, both basic features.

Sources

• The Constitution of India, Article 124 — legislative.gov.in
• Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) — Supreme Court of the United States
• Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 — Supreme Court of India
• Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 — Supreme Court of India

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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