ABSTRACT:
Post-colonial governments inherit legal institutions based on colonial domination, but their courts have an important function to remake these structures in response to changing cultural identities. This paper discusses how judicial review in India, Nigeria, and Ireland acts as a mechanism for negotiating post-colonial identity through constitutional law. The Supreme Court in India has taken an expansive view of fundamental rights, as in Kesavananda Bharati v. State of Kerala (1973), combining colonial legal traditions and indigenous pluralism. Nigeria’s judiciary, subject to the 1999 Constitution, struggles with ethnic diversity and the co-existence of common law, customary law, and Sharia law, as in A.G. Federation v. A.G. Abia State (2002). Ireland, emerging from British rule to a free republic, has employed judicial review to restate its national identity, from its initial Catholic heritage in McGee v. Attorney General (1973) to a secular and pluralist approach. By comparative legal examination of paradigm cases, constitutional provisions, and socio-cultural settings, this research contends that judicial review in post-colonial nations is not only a legal protection but a dynamic force in constructing national identity. The research indicates that India’s judiciary constructs a hybrid cultural story, Nigeria’s legal pluralism challenges coherence, and Ireland’s legal development represents a transition from religious conservatism to inclusive secularism. This paper highlights judicial review as a critical site of cultural negotiation in post-colonial governance, providing an insight into its role in forging legal and national identities in a variety of historical legacies.
KEYWORDS: Judicial Review, Courts Post-Colonial Legal Systems, Constitutional Interpretation, Cultural Identity and Law, Comparative Constitutionalism
INTRODUCTION:
The move from colonial domination to independence poses the question of how inherited legal systems can be made to respond to a nation’s unique cultural identity. Judicial review—the power of the courts to determine the constitutionality of legislative and executive actions—here not only provides a means of legal control but also provides a vehicle for the expression of post-colonial identity. This paper analyses the functioning of judicial review in three ex-British colonies, namely India, Nigeria, and Ireland, and its interplay with colonial heritages and autochthonous cultural values within their respective judiciaries. Every jurisdiction, given its peculiar historical and socio-political background, showcases an individual response towards utilizing judicial review as an instrument for nation-building in the post-colonial period.
India gained freedom in 1947 and adopted its Constitution in 1950, merging British legal concepts with the needs of a pluralistic nation with disparate religions, languages, and customs. Judicial review, as instituted in Articles 13, 32, and 226 of the Constitution, authorizes the Supreme Court and High Courts to protect fundamental rights and strike down contradictory legislation. A landmark judgment, Kesavananda Bharati v. State of Kerala (1973)[1], came to enshrine the “basic structure” doctrine, pronouncing those certain constitutional aspects—like democracy, secularism, and equality—are not amendable. This decision highlights the judiciary’s role in infusing India’s cultural pluralism into its legal system. Nigeria, having gained independence in 1960, is governed by its 1999 Constitution, which invests judicial review in the Supreme Court. With more than 250 ethnic groups, Nigeria is confronted with the daunting challenge of uniting a fractured society. The A.G. Federation v. A.G. Abia State [2](2002) case, which resolved conflicts over the distribution of resources, is an example of the judiciary’s attempts to balance regional identities with national unity. Ireland, having gained sovereignty by 1922, used its 1937 Constitution to establish a unique national identity based on Irish heritage and Catholic values. Judicial review by the Irish Supreme Court has itself moved from affirming conservative values to accepting more expansive rights, as in McGee v. Attorney General [3](1973), which struck down a prohibition on contraception and symbolized a transition towards a more progressive identity. Though they shared a common colonial past, these countries have proceeded down different tracks in applying judicial review. The judiciary in India has taken an activist stance, using public interest litigation (PIL) to make justice more accessible. The judgment in Indra Sawhney v. Union of India[4] (1992), validating affirmative action for backward castes, shows how judicial review reconciles constitutional principles with India’s social hierarchy. Nigeria’s legal system, within a federal setup, faces ethnic diversity and regional autonomy. The judiciary of Ireland, initially reconciling with Catholic theology, has increasingly conformed to contemporary standards of human rights, especially in the context of integration into the European Union. The decision of Ryan v. Attorney General[5](1989) in upholding personal rights evinces this process.
The analysis uses a comparative method, considering constitutional provisions, significant judicial rulings, and the respective cultures of the jurisdictions. The research draws on post-colonial theory and posits that judicial review moves beyond its traditional legal role to act as a forum for negotiating national identity in the post-colonial context.
[1] AIR 1973 SUPREME COURT 1461
[2] Attorney-General of the Federation v Attorney-General of Abia State [2002] NGSC 2
[4] AIR 1993 SUPREME COURT 477
[5] 1989 WJSC-SC 711