As the United States celebrates its 250th birthday, it is worth reflecting on the impact that the US Constitution as well as the US Supreme Court have had on the constitutional law of India.

The US Constitution was perhaps the first to rely on the principle of separation of powers, espoused by Montesquieu. The founding fathers of the Indian Constitution also adopted the principle of separation of powers.  Indeed, the Government of India Act, 1935, also provided for a framework that separated the three branches of Government.

The landmark ruling in Marbury v. Madison, 5 US (1 Cranch) 137 (1803) has perhaps been referred to more than any other case. 

This was noticed, among other cases, in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: AIR 1997 SC 1125. The Supreme Court noted that this decision of Chief Justice John Marshall was the origin of the power of judicial review. Therefore, when the framers of our Constitution set out on their monumental task, they were well aware that the power of courts to invalidate legislation was already in existence for 150 years. Among the amendments, the First, Eighth and Fourteenth amendments have been referred to by our Supreme Court.

In Shreya Singhal v. Union of India, (2015) 5 SCC 1, it was held that American judgments have great persuasive value on the content of the right to freedom of speech and expression and the tests laid down by the US courts for its infringement. The court noted that there was, however, a difference on the issue of the public interest. Indeed, in Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166, it was noted that while the First Amendment did not confer any power on Congress to impose restrictions on the freedom of speech, the Indian Constitution permitted reasonable restrictions under Article 19(2).

This amendment has also been referred to in several cases, as it is very similar to Article 14. The relevant portion of this amendment reads as follows: -

“ …. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This amendment has been considered in numerous decisions, including some landmark rulings.

In State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, Mukherjea J. observed that Article 14 is “modelled upon the equal protection clause occurring in the Fourteenth Amendment of the American Constitution with a further addition of the role of ‘equality before the law’ which is an established maxim of the English Constitution.”

In Shayara Bano v. Union of India, (2017) 9 SCC 1, it was noted that the concept of “equality before law” is derived from the U.K. and the concept of “equal protection of the laws” has been borrowed from the Fourteenth Amendment. The former is a negative concept, while the latter has a positive content. See also, Janhit Abhiyan v. Union of India, (2023) 5 SCC 1.

The Eighth Amendment prohibits cruel and unusual treatment or punishment, but Article 21 has no such express prohibition. However, the Supreme Court in Bachan Singh v. State of Punjab, (1982) 3 SCC 24, held that protection against torture or cruel and inhuman treatment or punishment is implicit in the guarantee of Article 21 and, therefore, even based on the reasoning in three American decisions, the principle of proportionality would have relevance under our Constitution. The three decisions are: Gregg v. Georgia, 428 US 153; Coker v. Georgia, 433 US 584; and Lockett v. Ohio, 438 US 586. Thus, apart from inhuman punishment, the cases on the Eighth Amendment were usefully referred to on the issue of proportionality. 

Apart from these amendments, the nine-judge bench in K.S Puttaswamy v. Union of India, (2017) 10 SCC 1, heavily relied on several US Supreme Court decisions to establish that the right to privacy is part of the Constitution of India. A reference may be made to these decisions, which are cited from paras 171 to 195 of the reported judgment.

It is now well settled that it is not permissible for the legislature to merely overrule or nullify a judgment. This can be done only by removing the basis of the earlier decision. The impermissibility of legislative overruling is well highlighted in Madras Bar Association v. Union of India, (2022) 12 SCC 455, 503-505. The judgments of the US Supreme Court in US v. Judge Peters, 9 US 115 (1809) and Brown v. Board of Education, 347 US 483 (1954) were referred to highlight the impermissibility of legislative overruling.

The recent U.S. Supreme Court decisions striking down President Trump’s tariffs (Learning Resources, Inc., Et Al. v. Donald J. Trump, 2026 SCC OnLine US SC 1), preserving Federal Reserve Governor Lisa Cook’s position (Trump v. Lisa D. Cook), and upholding birthright citizenship (Trump v. Barbara) underscore the importance of judicial review and the critical role of an independent judiciary in a republican democracy.

Arvind P. Datar is a Senior Advocate of the Supreme Court of India.