Judicial Review of Constitutional Amendments
[1]The amendment of the Indian Constitution took place in the year 1951 for the
very first time and through this amendment several modifications were made in
the fundamental rights and the era of land reform started through constitutional
mechanism, and the Supreme Court of India which has the main responsibility of
for its interpretation and its protection. It is the acting guardian of the
Fundamental Rights of the people.
The Supreme Court has the power to determine the validity of all laws with respect to the constitution. The SC has the power to reject law or any part of it which is found to be un�constitutional called the [2] Judicial review power of the Supreme Court. State High Courts also exercise this power but their judgements are often rejected or modified or upheld by the Supreme Court.
The principle of the judicial review became an important feature of written Constitutions of many countries. The power of judicial review has in itself the concept of separation of powers an important component of the rule of law, which is the basic feature of the Indian Constitution.
The power of Judicial Review is included in the Articles 226 and 227 of the Constitution regarding the High Courts are concerned and in the Articles 32 and 136 of the Constitution regarding the Supreme Court. The judiciary in India has come to control by judicial review in every aspect of governmental and public functions. Judicial review is basically a process under which the legislative or the executive actions are subject to review by the judiciary.
A court authoritatively for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision could also be invalidated for being unlawful or a statute could also be invalidated for violating the terms of a constitution. The Supreme Court's power of judicial review extends to the Constitutional Amendments. However, review of constitutional Amendments by judiciary in reference to Fundamental Rights and its legal Validity has been a Contentious Political issue.
This paper will be dealing with introducing the topic judicial review along with its background, features and its legal outlook with references to landmark case laws. Judicial review is often understood by two distinct but parallel legal systems, firstly the civil law and secondly the common law, and a also by two distinct theories of democracy regarding the manner in which the government should be organized with reference to the principles and doctrines of legislative supremacy and therefore the separation of powers.
Following the period of emergency, the judiciary was on the end for having delivered a series of judgments which were recognized by many as violative of the basic human rights of Indian citizens and changed the way it looked at the constitution and the Supreme Court said that any legislation is amenable to judicial review.
Introduction
Judicial review is an important approach by which the court examines the actions of the executive the legislature and the other governmental agencies and later decide whether the actions are valid or not and are within the limits set in the constitution.[3] This method or approach has also been closely associated with the judicial activism, as judicial activism is nothing but the exercise of the power of judicial review to set aside government acts.
It also tends to assess the judiciary to the rank of super legislature. Moreover, the judicial review exercised by the supreme court and high court do play an important role in establishing constitutional government in India by keeping the union and the state governments within their respective jurisdictional spheres. Judicial review is nothing but a type of proceeding in the court where a judge reviews the lawfulness of the decision or the action which is made by the public body. These are also a challenge to the way in which the decision is made rather than the rights or wrongs of the conclusion reached.
Background
[4]At first the word judicial review was used in the court of law in the case of Thomas Bonham v. College of Physicians (1610) 8 Co Rep 114, where Dr Bonham was forbidden to practice in London by the Royal college of physicians as he was not having a license for the same.
This case is also known for the violation of Principals of Natural Justice as in this case there is pecuniary bias. As Dr Bonham is fined for his without a license, practicing the fine would be distributed between the king and the college itself. Later judicial review was also summarized in Marbury v. Madison 5 U.S. 1 (137) 1803, where the term period of President Adam belonging to the federalist party came to an end and Jefferson the anti-federalist came to power.
On his last day, Adam appointed the members of the federal party as judges. But when Jefferson came to power, he was against this. So, he later stopped Madison the secretary of state, from sending the appointment letter to the judges. Marbury (one of the judges) approached the Supreme Court and filed a writ of mandamus and here the Court refused to entertain the plea and at first opposed the order of the legislature i.e., Congress and hence the US Supreme court developed the doctrine of judicial review.
Evolution Of Judicial Review:
The Doctrine of Judicial Review was for the first time propounded by the Supreme Court of America. Originally, the constitution of United States did not contain an express provision for judicial review but it was assumed by the Supreme Court of United States in the historic case of Marbury vs Madison 2. LEd.60. Chief Justice Marshall observed that "the constitution is either superior paramount law, unchangeable by ordinary means or it is on a level with ordinary legislative acts and like other acts is alterable when the legislature shall please to alter it...........
Certainly all those who framed written constitutions contempellate them as forming the fundamental and paramount law of the nation and consequently the theory of every such government must be that an act of the legislature repugnant to the constitution is void.... It is emphatically the provonce and duty of the judicial department to say what the law is".
In India the power of judicial review was exercised by the courts prior to the commencement of the constitution of india. the British Parliament introduced Federal System in India by enacting the Government of India Act 1935. Under this act both the Central and State legislatures were given plenary powers in there respective spheres. They were supreme in their alloted subjects like British Parliament.
The Act of 1935 established the Federal Court so as to function as an arbiter in central and state relationship. The Federal Court was also empowered to scrutinize the violation of the constitutional directions regarding the distribution of powers on introduction of federalism in india. The power of judicial review was not specifically provided in the constitution but the constitution being federal, the Federal court was entrusted impliedly with the function of interpreting the constitution and determine the constitutionality of legislative acts.
Mauriee Gwyer, Chief Justice of Federal Court of India in Bhola Prasad v The King Emperor AIR 1942 F.C.R 17 P20, observed that " we must again refer to the fundamental proposition enumerated in 1878 3 AC 889 (Reg v Borah) that Indian legislatures within their own spheres have plenary powers of legislation as large and of the same nature as those of the parliament itself, if that was true in 1878, it can not be less true in 1942.
The Federal Court of India vigorously worked for more than a decade with wisdom and diginity and by various constitutional decisions. During the span of the decade Federal Court of India and other High Courts reviewed the constitutionality of large number of legislative acts with full judicial self restraint, insight and ability.
Granville Austin in his book The Indian Constitution - Corner Stone Of a Nation said that " the judiciary was to be an arm of the social revolution upholding the equality that indians has longed for during colonial days, but had not gained not simply because the regime was colonial, and perforce repressive, but largely because the british had feared that social change would endanger their rule.... The courts were also idealized becuase, as guardians of the constitution there would be expression of the new law created by indians for indians. judicial review, assembly members believed, was ' an essential power for the courts of a free India, with a federal constitution'."
Under the statutory and constitutional provisions, the courts have the wide range of powers of judicial review in India. It is to state that the constitutional and statutory provisions of judicial review are totally different. The courts must exercise these powers with self-control and great caution. It is not expected from the courts that they phase out from the boundary of their appropriate influences of judicial assessment.The constitution of India provides an express provision for judicial review in the shape of Article 13. which states as:
13(1). all laws in force in the territory of India immediately before the commencement of constitution shall be void to the extent to which they are inconsistent with the provisions of part 3rd of the constitution.
13(2). state shall not make any law which takes away or abridges the fundamental rights conferred by part 3rd of constitution and any law made in contravention of fundamental rights shall to the extent of contravention, be void.
13(3). law includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law.
Article 13 in fact provides for the judicial review of all legislations in india, past as well as future. This power has been conferred on the High courts and the Supreme court of India which can declare a law unconstitutional if it is inconsistent with any of the provisions of part 3rd of the constitution.
Thus, the laws which take away or abridge the fundamental rights are liable to be struck down as ultra-vires or void by the courts under art 13 (2) by exercising the power of judicial review. Chief Justice Patanjali Shastri in State of Madras vs. V.G.Row AIR 1952 SC 196, observed that our constitution contains express provision for judicial review of legislation as to its confirmity with the constitution........ the courts in this country face upto such important and none too easy task, it is not out of any desire to tilt at legislative authority and a crusader's spirit, but in discharge of duty plainly laid upon them by constitution.
This is specially true as regards the fundamental rights as to which the court has been assigned the role of sentinel on the qui vive. Chief Justice Kania in A.K.Gopalan vs. state of Madras AIR 1950 SC 27, pointed out that it was only by way of abundant caution that the framers of our constitution inserted the specific provisions in Art 13...... In India, it is the constitution which is supreme and all statute laws must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.
The fundamental subjects of judicial review in the constitution of India relates to the following things:
India, judicial review broadly covers three aspects;
The powers to review legislation are vested by way of the S.C.I. and state's higher courts, for the resolution of judicial assessment. The judicial assessment of legislation is in conformism, through the establishment of the Constitution.
In [6]Brij Bhurshan vs. State of Delhi, the Supreme Court struck down the East Punjab Public Safety Act 1950, on the ground that pre-censorship restricted the freedom of the press.
Ramesh Thapar vs State of Madras, AIR 1950 SC 124, Supreme Court again struck down the Madras Maintenance of Public Safety Act 1949, on the ground that unless a law restricting freedom of speech and expression is directed against undermining the security of the state or to overthrow it, such law cannot fall within the reservation of clause (2) of Article 19.
[7]Shankari Prasad vs. UOI the First Amendment was challenged on the ground that it abrogated the fundamental right. The argument was based on the fact that the law under Article 13 (3) shall include the constitutional amendment law. The Supreme Court rejected the contention and held that the word law in Article 13 must be taken to mean rules or regulations made in exercise of constitutional power and therefore A 13(3), did not affect amendments made under Article 13 (3).
[8]Sajjan Singh vs. Rajasthan, again the validity of the constitution, 17th Amendment Act 1964 was in issue. The Court stuck to the position laid down in Shankari Prasad case and held that the constitutional amendments made under Art 368 fall outside the purview of judicial review by the courts.
This amendment was again challenged in Golaknath vs State of Punjab and Supreme Court through Justice Subba Rao, held that:
Invoking the concept of Implied Limitations on the parliament's power to amend, Chief Justice Subba Rao held that fundamental rights were given a transcendental position under our constitution and are kept beyond the reach of parliament.
In order to remove the difficulties created by the decision of Supreme Court in Golaknath case, parliament ended with the 24th Amendment Act 1971. This amendment added the following things to Article 13 and Article 368.
Art 13 (4). "nothing in this article shall apply to any amendment of this constitution made under article 368."
Article 368. Procedure for amendment of the constitution was replaced by Power of parliament to amend the constitution and the procedure thereof.
Article 368(3). "nothing in article 13 shall apply to any amendment made under this article."
Thus, this amendment restored the amending power of the parliament and also extended its scope by adding the words " to amend by way of addition or variation or repeal" any provision of this constitution in accordance with the procedure laid down in Article 368.
In 1972, The Supreme Court was called upon to consider the validity of the 24th, 25th and 29th Amendment in [9]Keshvananda Baharti's case AIR 1973 SC 1461. The Supreme Court emerged victorious by asserting its institutional role vis-a-vis parliament in constitutional powers and strengthening its powers of judicial review through the Basic Feature Doctrine. The doctrine of basic feature has since become the bedrock of constitutional interpretation in India.
The last straw was the Allahabad High Court's decision staying Mrs. Gandhi's Election as Member of Parliament. Indira Gandhi filed an appeal before the Supreme Court from the decision of the Allahabad High Court in which it was held that the appelant had committed certain malpractices in her election. Before Supreme Court could hear the Appeal the parliament passed the Constitutional Amendment Bill 1975, which inserted clause 329 A in the constitution and placed the election of Prime Minister and Speaker beyond the purview of judicial scrutiny by way of judicial review.
Supreme Court held that the Democracy is the basic structure of the constitution. Therefore, if by 329 A, any essential feature of democratic, republican, structure of Indian polity is damaged or destroyed it would be ultra-vires of the constitution.
In sharp contrast was the Supreme Courts ruling in [10]ADM Jabalpur case. During the Emergency the leaders of the opposition were put in prison, the press was muzzled and fundamental rights suspended. Upsetting rulings by Twelve High Courts in the country, the Supreme Court held that during the Proclamation of Emergency under Article 352 of the Constitution, a court was powerless to protect an individual from state action notwithstanding such action being contrary to law and resulting in complete deprivation of the right to life and liberty.
It was after the emergency was lifted there dawned a realization of the importance of decisions such as Keshavananda Bharti case, and the importance generally of the power of judicial review. The activist role that the Supreme Court was to assume in later years is often explained as a "judicial penance" for failing the people at a critical moment in history. Post Emergency activism by the courts was also inspired by the desire to shake off the elitist image the supreme court had acquired in the earlier years. The courts opened up their doors to the poor and voiceless and acquired in time, the role of a social auditor, becoming in Justice Goswami's famous words," the last resort for the bewildered and the oppressed".
[11]Minnerva Mills Ltd vs. UOI, the Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. Limited amending power is a basic structure of the constitution, since these clauses removed all limitations on the amending power and thereby conferred an unlimited amending power, it is destructive of the basic feature of the constitution.
Thus, for the amendment to be valid the primary thing to exist is that it should not destroy the basic structure of the constitution. The judiciary occupied a position higher than corresponding organs in its capacity as the arbiter of the fact as to what constitutes the basic structure of the constitution.
The principle of judicial review was reiterated and followed by the Supreme Court in subsequent case law. In the subsequent case of [12]S.P Sampat Kumar v Union of India and L.Chandra Kumar v Union of India. The constitutional validity of Art 323 (A) and the provisions of Administrative Tribunals Act 1985 which excluded the jurisdiction of the High Courts under Art 226 and 227 was in issue. The Supreme Court held that the power of judicial review over the legislative action vested in the High Courts under Art 226 and the Supreme Court under Art 32 of the constitution is an integral and essential feature of the constitution and formed part of its basic structure.
The basic structure doctrine was yet again reaffirmed in the case of I.R.Coelho vs State of Tamil Nadu AIR 2007 SC 8617, in which the Supreme Court held that any law placed in the 9th schedule after April 24, 1974 will be open to challenge. The Court held that even through the Act is put in the 9th schedule by a constitutional Amendment its provisions would be open to challenge on the ground that they destroy or damage the basic feature of the constitution.
Supreme Court Advocates on Record Association vs Union of India, Writ Petition (Civil) No.13 of 2015, the National Judicial Appointments Commission Act was challenged on the ground that the NJAC violates judicial independence by creating a system in which the Chief Justice would no longer have primacy in judicial appointments and in which the judiciary would not have majority control over the NJAC in a system where the political influence of the executive and parliament would be dominant. Also it grants power to the parliament to change and alter judicial selection criteria and procedures, which constitutes the violation of judicial independence, separation of powers and Rule of Law.
The Supreme Court observed that the impugned Amendment and the Act are struck down as unconstitutional. pre-existing scheme of appointment of judges stands revived. However, the matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.
In J. P. Bansal v State of Rajasthan AIR 2003 SC , case of the S.C.I. has examined that the impartiality of the judiciary endangers in the community attention. Although the court interpreting the Constitution enjoys freedom. Under this freedom the court has not failed in interpreting the statute. The rule of law is the essential component of the judicial assessment, as soon as the court interpret statute and provide their own view for amending the statute. Such aforesaid judgment is the injurious to public interest.
[13]Supreme Court of India in P.U.C.L. & others v. U. O. I. AIR 2003, case examined that the court will not interfere on the political question and on the policy matter, unless it is essential for the judicial review. However, court can interfere only on the selective ground. The court further stated that the government has to be bound by all the accessible possibilities to avoid the violence inside the establishment of the Indian Constitution.
Shayara Bano vs Union Of India W.P.No. 118 of 2016 in this case supreme court of india held that triple talaq is a unilateral power given to the husband to divorce his wife and on the face of it, it looks arbitary therefore triple talaq is unconstitutional being violative of fundamental rights. Justice Nariman propunded Doctrine Of Manifest Arbitration and held that triple talaq is violative of Art 14 of the constitution of India.
In Joseph Shine vs Union of India AIR 2018 S.C.I held that sec 497 of Indian Penal Code is unconstitutional. Similarily before Supreme Court of India in Navjot Singh Joher vs Union of India AIR 2018 SC the constitutional validity of sec 377 was challenged on the ground that it violates fundamental right. Justice Chandrachud observed that " i am not bound by societal morality, i am bound by constitutional morality and if the constitution protects the interests of a single citizen of India i am bound to protect it". Therefore Sec 377 of I.P.C was decriminalized and was held to be unconstitutional.
Anuradha Bhasin vs. Union of India 2020 SC, The Union Territory of Jammu and Kashmir was directed by Supreme Court to review all orders suspending the internet services forthwith, all orders not in accordance with law must be revoked. Supreme Court held that the Freedom of Speech and Expression and the Freedom to practice any Profession or carry on any Trade, Business or Occupation over the medium of internet enjoys constitutional protection under Art 19 (1) (a) and Art 19 (1) (g). The restriction upon such fundamental rights should be in consonance with the mandate under Art 19 (2) and Art 19 (6) of the constitution inclusive of the test of Proportionality.
Although Doctrine of Judicial Review is the basic structure of the constitution of India, it is not justified in policy matters. However, it is justified in policy matters provided that the policy is arbitary, unfair or violative of fundamental rights. In [14]Kerala Bar Hotels Association vs State of Kerala, the Supreme Court held that the courts must be loathe to venture into an evaluation of state policy which must be given a reasonable time to pan out. If a policy proves to be unwise, oppressive or mindless, the electorate has been quick to make the government aware of its folly.
The Doctrine of Judicial Review is thus, the interposition of the judicial restraint on the legislative, executive and judicial actions of the government. It has assumed the status of permanence through judicial decisions laid down from 1973 till now. Thus, Judicial Review is the basic structure of the constitution of India and any attempt to destroy or damage the basic structure is unconstitutional.
Features Of Judicial Review
The extent of this judicial review in the Indian courts emerged in three dimensions; first, to establish the fairness in administrative action, second, to protect the guaranteed constitutional fundamental rights and finally, to rule on questions of legislative competence between the Centre and the states.
The Judicial Review (As A Part Of The Basic Structure)
In the landmark case of Kesavananda Bharati v. the State of Kerala AIR 1973 SC 1461, which was decided by a nine judge bench the doctrine of the basic structure was laid down, which stated that any law that is made should not be in violation of the fundamental rights and if the amendments are made then it should be made as such that they do not eradicate the basic structure. Basically, the legislature has power to amend the Constitution, but such amendments shall not change the basic structure of the Constitution.
However, it was further noted that the basic structure was built on the foundation of dignity and freedom of the individual which undoubtedly couldn't be amended. It was also noted that in this case the above are only illustrative and not comprehensive of all the limitations on the power of amendment of the Constitution.
It was also observed that fundamental rights are of utmost importance and they should be preserved with all due respect by the state and provisions should be made to protect them and abrogate them. Along with this notion, this case raised questions on the constitutionality of the 25th amendment and hence, declared that the basic structure of the fundamental rights should not be violated by the legislature or the state under the provisions of the Article 368 and the second part of the Article gave the jurisdiction of the court, a boot.
In another important case of Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, the extended portion of Article 31C was eradicated completely with the rationale that it attacked the fundamental rights under Article 368. In this the judgment also stood up for the concept of the judicial review which is not made available to the people in case of infringement of the fundamental rights.
In the case of S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124 at 128 relying on Minerva Mills Ltd. Case it was stated that it was well settled and established that judicial review was a basic and essential feature of the Constitution. Moreover, if the power of judicial review was absolutely eliminated, the Constitution would lose its basic structure.
Judicial Review With Refrence To Articles 31-A, 31-B, 31-C
[15]Article 31-A was added to the Constitution of India by the First Amendment, 1951. The fourth amendment substituted various clauses in it. This Article of Indian Constitution gave the people of India the right to hold and dispose of their property as they see fit. According to which, the government can acquire the property of the people and by doing so, the fundamental rights mentioned in Article 14 and 19 of Indian Constitution should not be violated.
Moreover, in other words, Article 31 A of Indian Constitution was immune to Article 14 and 19 of Indian Constitution that provide for right to equality and the right to freedom respectively, and this amendment helped in the abolition of the Zamindari system as the government took the land from the Zamindars and used it for public welfare by either redistribution or agriculture.
The government also took control of different private companies in order to use them for enhanced growth. However, this could be done for a fixed amount of time after which, the control had to be returned and the government redistributed the mining rights from mine lords and took control of the production and the distribution of various other resources.
In [16]Waman Rao & ors v. UOI & ors. and I R Coelho v. State of TN case, the first amendment in which the Article 31A was introduced and the fourth amendment was held to be constitutional, which substituted the new clauses to this Article. Hence, relying on the judgments of Minerva Mills case and Waman Rao case and I R Coelho case Article 31A can be stated as constitutionally valid.
Article 31-B is also the result of the 1st Amendment Act of 1951, it was added as a constitutional device to protect the specified statutes from any attack on the basis that they infringe Part III of the Constitution. Moreover, it has retrospective effect which is clear from the words ever to have become void. It is in reference with the acts and laws mentioned in the IX Schedule of the Indian Constitution, moreover, the IX Schedule of Indian Constitution is a list of acts and laws which in the court of law cannot be challenged.
In other words, basically any such acts mentioned in this schedule are out of the reach of the Indian judiciary. Article 31b of the Indian Constitution states that the provisions mentioned in Article 31a are immune from Indian judiciary and therefore cannot be invalid on the basis that they might violate the fundamental rights under the Articles 14, 19 and 31 of Indian Constitution.
[17]Article 31-C of Indian Constitution was included through the 25th amendment act of 1971 through which the government tried to give primacy to some Directive Principles of State Policy over the fundamental rights. It also provides immunity from any challenge on the basis of violation of the Articles 14, 19 and 31, and any law enacted for implementing the directives in clause (b) and (c) of Article 39.
The Supreme Court in the case of Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. AIR 1983 SC 239, struck down article 31C as unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it destroys the basic features of the Constitution. The objectives were set out in the Part IV has to be achieved without abrogating the means provided for by Part III. Thus, there's no conflict between the directive principles and the fundamental rights as these are meant to supplement one another and the Court held that article 31C as originally introduced by the 25th Amendment is constitutionally valid.
There are two conditions which must be fulfilled for the execution of the Article 31 C; firstly, a law for giving affect to the policy of the state to implement a Directive Principle in Article 39(b) or (c). Secondly, the Legislature made a declaration to that effect.
However, the question that whether or not the act is meant to secure the aim contained in Article 39(b), (c) doesn't depend on the declaration made by the legislature but on the contents of the act as found by the court.
A Legal Outlook In Regard To Constitutional Amendments
Judicial Review in this period is done for all the constitutional amendments done by the authority and all those amendments which are in violation of fundamental rights are declared to be void and it is held to be unconstitutional. All the judicial review for the constitutional amendments can be traced in history. We have already seen in the above-mentioned case laws that the constitutional amendments were challenged and all those against the constitution are declared unconstitutional and held void. We can trace the marks of judicial review of the constitutional amendment in the above-mentioned cases.
The role of Judicial Review in Indian Constitution is to protect and provide liberty and freedom to the people. Some thinkers of India have observed that the scope of judicial review in India is very limited and the courts in India do not enjoy as wide jurisdiction as the courts in America.
The right to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law such as first, habeas corpus which is to direct to release a person who is detained unlawfully, second, mandamus which is to direct a public authority to do its duty, third, quo warranto which is to direct a person to leave an office assumed wrongfully, fourth, prohibition which is to prohibit a lower court from proceeding on a case and lastly, certiorari where the power being given to the higher court to remove a proceeding from a lower court and bring it before itself.
The [18]review of constitutional Amendments by judiciary in relation to Fundamental Rights and its legal Validity has been a debatable Political issue. The doctrine of basic Structure has allowed the application of judicial review to Constitutional amendments involving Fundamental Rights also.
This doctrine evolved in Kesavananda Bharati case, 1973, moreover, the parliament can amend the constitution under the Article 368 but such amendments should not take away or violate the fundamental rights and any law made in contravention with this rule shall be made void (Article 13).
As we have seen in the Kesavananda Bharati case the constitutional validity of 24th amendment (Enables Parliament to dilute Fundamental Rights through Amendments of the Constitution, and empowers it to amend any provision of the Constitution), 25th amendment (The amendment also exempted any law giving effect to the article 39(b) and (c) of Directive Principles of State Policy from judicial review, even if it violated the Fundamental Rights) and 29th amendment was challenged. The Court upheld the 24th Amendment Act and held that even though the Parliament is entitled to amend any provision of the Constitution it is void since it takes away invaluable fundamental rights.
Even in the case of Golak Nath vs. State of Punjab AIR 1967 SC 1643, the Validity of three constitutional amendments (1st, 4th and 17th) was challenged and it was upheld that Amending power and legislative Power of the Parliament were essentially the same. Which means that the Amendment Acts under Article 368 Cannot amend Fundamental Rights, as it Would Violate Article 13. In this case it for the first time the doctrine of prospective overruling was applied and it was held that the 17th amendment will be valid.
The court regarding the judicial review process has evolved few guidelines which are to be used as guide in the process, which are;
When we talk about come judicial review of administrative action though the presumption of validity is not as strong in the case of administrative action as in the case of statutes. However, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint.
It is also said that the question the legality of the exercise of discretionary power cannot be questioned unless and until it is an abuse of discretionary power, which includes mala fide exercise of power or, exercising the power for an improper motive or, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases the unreasonable exercise of power and the non-exercise of discretion which comes when the power is exercised without proper delegation and when it is acted under dictation.[19]
Criticism Points
A large number of the supporters of judicial review don't accept the arguments of the critics; they argue that judicial review is an essential and very useful system for Indian liberal democratic and federal system. It has been playing an important role and desired in the protection and development of the constitution.
It is observed that Judicial Review is essential for maintaining the supremacy of the Constitution and for checking the possible misuse of power by the legislature and executive. It is also a device for protecting the rights of the people.
The grant of judicial review power to the judiciary is also important for strengthening the position of judiciary. It is also important for securing the independence of the judiciary. It was noted that the power of Judicial Review has helped the Supreme Court of India in exercising its constitutional duties.
Conclusion
As we know the judicial review is very important but at the same time absolute power to review cannot be granted and by observing the judicial review as a part of basic aspect of the Indian Constitution and the courts in India have given altogether a different meaning to the theory of checks and balances. Judicial review also plays a vital role as protector of the values of the constitutional and over the legislative action is vested in the high court's and Supreme Court under Articles 226 and 32 of the Indian constitution respectively. It is observed that the Constitution of India, the supreme law of the land believes that amend your procedures and doings to improve in the future.
The[20] Constitution 44th Amendment Act, 1978, signifies the demise of the fundamental Right to Property, where the property right turned out to be the most controversial right with lots of reforms and criticism along with it. With the [21]Article 31, Article 19(1) (g) and Article 31C being stated as unconstitutional and its second part being shifted to Article 300A for making the fundamental right a constitutional right, the property law kept diminishing. Ultimately, we have developed the concept of judicial review and it has become the part of basic structure in case of Minerva Mills v. Union of India, and the basic structure doctrine also helps in preserving and protecting the spirit of the constitution and to preserve the nature of democracy of India and protect the right of the people.
Moreover, we also see that any amendment or law which is violative of the rights of the people are struck down by the court on the basis of the basic structure doctrine and thus any law that tries to change the basic structure of the constitution is therefore invalid. So, it is correct to say that judicial review has grown to safeguard the individual right, to stop the use of arbitrary power and to prevent the miscarriage of justice.
End-Notes:
The Supreme Court has the power to determine the validity of all laws with respect to the constitution. The SC has the power to reject law or any part of it which is found to be un�constitutional called the [2] Judicial review power of the Supreme Court. State High Courts also exercise this power but their judgements are often rejected or modified or upheld by the Supreme Court.
The principle of the judicial review became an important feature of written Constitutions of many countries. The power of judicial review has in itself the concept of separation of powers an important component of the rule of law, which is the basic feature of the Indian Constitution.
The power of Judicial Review is included in the Articles 226 and 227 of the Constitution regarding the High Courts are concerned and in the Articles 32 and 136 of the Constitution regarding the Supreme Court. The judiciary in India has come to control by judicial review in every aspect of governmental and public functions. Judicial review is basically a process under which the legislative or the executive actions are subject to review by the judiciary.
A court authoritatively for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision could also be invalidated for being unlawful or a statute could also be invalidated for violating the terms of a constitution. The Supreme Court's power of judicial review extends to the Constitutional Amendments. However, review of constitutional Amendments by judiciary in reference to Fundamental Rights and its legal Validity has been a Contentious Political issue.
This paper will be dealing with introducing the topic judicial review along with its background, features and its legal outlook with references to landmark case laws. Judicial review is often understood by two distinct but parallel legal systems, firstly the civil law and secondly the common law, and a also by two distinct theories of democracy regarding the manner in which the government should be organized with reference to the principles and doctrines of legislative supremacy and therefore the separation of powers.
Following the period of emergency, the judiciary was on the end for having delivered a series of judgments which were recognized by many as violative of the basic human rights of Indian citizens and changed the way it looked at the constitution and the Supreme Court said that any legislation is amenable to judicial review.
Introduction
Judicial review is an important approach by which the court examines the actions of the executive the legislature and the other governmental agencies and later decide whether the actions are valid or not and are within the limits set in the constitution.[3] This method or approach has also been closely associated with the judicial activism, as judicial activism is nothing but the exercise of the power of judicial review to set aside government acts.
It also tends to assess the judiciary to the rank of super legislature. Moreover, the judicial review exercised by the supreme court and high court do play an important role in establishing constitutional government in India by keeping the union and the state governments within their respective jurisdictional spheres. Judicial review is nothing but a type of proceeding in the court where a judge reviews the lawfulness of the decision or the action which is made by the public body. These are also a challenge to the way in which the decision is made rather than the rights or wrongs of the conclusion reached.
Background
[4]At first the word judicial review was used in the court of law in the case of Thomas Bonham v. College of Physicians (1610) 8 Co Rep 114, where Dr Bonham was forbidden to practice in London by the Royal college of physicians as he was not having a license for the same.
This case is also known for the violation of Principals of Natural Justice as in this case there is pecuniary bias. As Dr Bonham is fined for his without a license, practicing the fine would be distributed between the king and the college itself. Later judicial review was also summarized in Marbury v. Madison 5 U.S. 1 (137) 1803, where the term period of President Adam belonging to the federalist party came to an end and Jefferson the anti-federalist came to power.
On his last day, Adam appointed the members of the federal party as judges. But when Jefferson came to power, he was against this. So, he later stopped Madison the secretary of state, from sending the appointment letter to the judges. Marbury (one of the judges) approached the Supreme Court and filed a writ of mandamus and here the Court refused to entertain the plea and at first opposed the order of the legislature i.e., Congress and hence the US Supreme court developed the doctrine of judicial review.
Evolution Of Judicial Review:
The Doctrine of Judicial Review was for the first time propounded by the Supreme Court of America. Originally, the constitution of United States did not contain an express provision for judicial review but it was assumed by the Supreme Court of United States in the historic case of Marbury vs Madison 2. LEd.60. Chief Justice Marshall observed that "the constitution is either superior paramount law, unchangeable by ordinary means or it is on a level with ordinary legislative acts and like other acts is alterable when the legislature shall please to alter it...........
Certainly all those who framed written constitutions contempellate them as forming the fundamental and paramount law of the nation and consequently the theory of every such government must be that an act of the legislature repugnant to the constitution is void.... It is emphatically the provonce and duty of the judicial department to say what the law is".
In India the power of judicial review was exercised by the courts prior to the commencement of the constitution of india. the British Parliament introduced Federal System in India by enacting the Government of India Act 1935. Under this act both the Central and State legislatures were given plenary powers in there respective spheres. They were supreme in their alloted subjects like British Parliament.
The Act of 1935 established the Federal Court so as to function as an arbiter in central and state relationship. The Federal Court was also empowered to scrutinize the violation of the constitutional directions regarding the distribution of powers on introduction of federalism in india. The power of judicial review was not specifically provided in the constitution but the constitution being federal, the Federal court was entrusted impliedly with the function of interpreting the constitution and determine the constitutionality of legislative acts.
Mauriee Gwyer, Chief Justice of Federal Court of India in Bhola Prasad v The King Emperor AIR 1942 F.C.R 17 P20, observed that " we must again refer to the fundamental proposition enumerated in 1878 3 AC 889 (Reg v Borah) that Indian legislatures within their own spheres have plenary powers of legislation as large and of the same nature as those of the parliament itself, if that was true in 1878, it can not be less true in 1942.
The Federal Court of India vigorously worked for more than a decade with wisdom and diginity and by various constitutional decisions. During the span of the decade Federal Court of India and other High Courts reviewed the constitutionality of large number of legislative acts with full judicial self restraint, insight and ability.
Granville Austin in his book The Indian Constitution - Corner Stone Of a Nation said that " the judiciary was to be an arm of the social revolution upholding the equality that indians has longed for during colonial days, but had not gained not simply because the regime was colonial, and perforce repressive, but largely because the british had feared that social change would endanger their rule.... The courts were also idealized becuase, as guardians of the constitution there would be expression of the new law created by indians for indians. judicial review, assembly members believed, was ' an essential power for the courts of a free India, with a federal constitution'."
Under the statutory and constitutional provisions, the courts have the wide range of powers of judicial review in India. It is to state that the constitutional and statutory provisions of judicial review are totally different. The courts must exercise these powers with self-control and great caution. It is not expected from the courts that they phase out from the boundary of their appropriate influences of judicial assessment.The constitution of India provides an express provision for judicial review in the shape of Article 13. which states as:
13(1). all laws in force in the territory of India immediately before the commencement of constitution shall be void to the extent to which they are inconsistent with the provisions of part 3rd of the constitution.
13(2). state shall not make any law which takes away or abridges the fundamental rights conferred by part 3rd of constitution and any law made in contravention of fundamental rights shall to the extent of contravention, be void.
13(3). law includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law.
Article 13 in fact provides for the judicial review of all legislations in india, past as well as future. This power has been conferred on the High courts and the Supreme court of India which can declare a law unconstitutional if it is inconsistent with any of the provisions of part 3rd of the constitution.
Thus, the laws which take away or abridge the fundamental rights are liable to be struck down as ultra-vires or void by the courts under art 13 (2) by exercising the power of judicial review. Chief Justice Patanjali Shastri in State of Madras vs. V.G.Row AIR 1952 SC 196, observed that our constitution contains express provision for judicial review of legislation as to its confirmity with the constitution........ the courts in this country face upto such important and none too easy task, it is not out of any desire to tilt at legislative authority and a crusader's spirit, but in discharge of duty plainly laid upon them by constitution.
This is specially true as regards the fundamental rights as to which the court has been assigned the role of sentinel on the qui vive. Chief Justice Kania in A.K.Gopalan vs. state of Madras AIR 1950 SC 27, pointed out that it was only by way of abundant caution that the framers of our constitution inserted the specific provisions in Art 13...... In India, it is the constitution which is supreme and all statute laws must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.
The fundamental subjects of judicial review in the constitution of India relates to the following things:
India, judicial review broadly covers three aspects;
- judicial review of legislative action
- judicial review for judicial decision, and
- judicial review of administrative action
The powers to review legislation are vested by way of the S.C.I. and state's higher courts, for the resolution of judicial assessment. The judicial assessment of legislation is in conformism, through the establishment of the Constitution.
In [6]Brij Bhurshan vs. State of Delhi, the Supreme Court struck down the East Punjab Public Safety Act 1950, on the ground that pre-censorship restricted the freedom of the press.
Ramesh Thapar vs State of Madras, AIR 1950 SC 124, Supreme Court again struck down the Madras Maintenance of Public Safety Act 1949, on the ground that unless a law restricting freedom of speech and expression is directed against undermining the security of the state or to overthrow it, such law cannot fall within the reservation of clause (2) of Article 19.
[7]Shankari Prasad vs. UOI the First Amendment was challenged on the ground that it abrogated the fundamental right. The argument was based on the fact that the law under Article 13 (3) shall include the constitutional amendment law. The Supreme Court rejected the contention and held that the word law in Article 13 must be taken to mean rules or regulations made in exercise of constitutional power and therefore A 13(3), did not affect amendments made under Article 13 (3).
[8]Sajjan Singh vs. Rajasthan, again the validity of the constitution, 17th Amendment Act 1964 was in issue. The Court stuck to the position laid down in Shankari Prasad case and held that the constitutional amendments made under Art 368 fall outside the purview of judicial review by the courts.
This amendment was again challenged in Golaknath vs State of Punjab and Supreme Court through Justice Subba Rao, held that:
- The power of parliament to amend the constitution is derived from
Article 245 read with entry 97 of list 1st of the constitution and not
from Article 368. Article 368 only lays down the procedure for the
amendment of the constitution. Amendment is a legislative process.
- An Amendment is a law within the meaning of art 13 (3), including every kind of law, statutory as well as constitution law and hence a constitutional amendment which contravened Art 13 (3) will be declared void.
Invoking the concept of Implied Limitations on the parliament's power to amend, Chief Justice Subba Rao held that fundamental rights were given a transcendental position under our constitution and are kept beyond the reach of parliament.
In order to remove the difficulties created by the decision of Supreme Court in Golaknath case, parliament ended with the 24th Amendment Act 1971. This amendment added the following things to Article 13 and Article 368.
Art 13 (4). "nothing in this article shall apply to any amendment of this constitution made under article 368."
Article 368. Procedure for amendment of the constitution was replaced by Power of parliament to amend the constitution and the procedure thereof.
Article 368(3). "nothing in article 13 shall apply to any amendment made under this article."
Thus, this amendment restored the amending power of the parliament and also extended its scope by adding the words " to amend by way of addition or variation or repeal" any provision of this constitution in accordance with the procedure laid down in Article 368.
In 1972, The Supreme Court was called upon to consider the validity of the 24th, 25th and 29th Amendment in [9]Keshvananda Baharti's case AIR 1973 SC 1461. The Supreme Court emerged victorious by asserting its institutional role vis-a-vis parliament in constitutional powers and strengthening its powers of judicial review through the Basic Feature Doctrine. The doctrine of basic feature has since become the bedrock of constitutional interpretation in India.
The last straw was the Allahabad High Court's decision staying Mrs. Gandhi's Election as Member of Parliament. Indira Gandhi filed an appeal before the Supreme Court from the decision of the Allahabad High Court in which it was held that the appelant had committed certain malpractices in her election. Before Supreme Court could hear the Appeal the parliament passed the Constitutional Amendment Bill 1975, which inserted clause 329 A in the constitution and placed the election of Prime Minister and Speaker beyond the purview of judicial scrutiny by way of judicial review.
Supreme Court held that the Democracy is the basic structure of the constitution. Therefore, if by 329 A, any essential feature of democratic, republican, structure of Indian polity is damaged or destroyed it would be ultra-vires of the constitution.
In sharp contrast was the Supreme Courts ruling in [10]ADM Jabalpur case. During the Emergency the leaders of the opposition were put in prison, the press was muzzled and fundamental rights suspended. Upsetting rulings by Twelve High Courts in the country, the Supreme Court held that during the Proclamation of Emergency under Article 352 of the Constitution, a court was powerless to protect an individual from state action notwithstanding such action being contrary to law and resulting in complete deprivation of the right to life and liberty.
It was after the emergency was lifted there dawned a realization of the importance of decisions such as Keshavananda Bharti case, and the importance generally of the power of judicial review. The activist role that the Supreme Court was to assume in later years is often explained as a "judicial penance" for failing the people at a critical moment in history. Post Emergency activism by the courts was also inspired by the desire to shake off the elitist image the supreme court had acquired in the earlier years. The courts opened up their doors to the poor and voiceless and acquired in time, the role of a social auditor, becoming in Justice Goswami's famous words," the last resort for the bewildered and the oppressed".
[11]Minnerva Mills Ltd vs. UOI, the Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. Limited amending power is a basic structure of the constitution, since these clauses removed all limitations on the amending power and thereby conferred an unlimited amending power, it is destructive of the basic feature of the constitution.
Thus, for the amendment to be valid the primary thing to exist is that it should not destroy the basic structure of the constitution. The judiciary occupied a position higher than corresponding organs in its capacity as the arbiter of the fact as to what constitutes the basic structure of the constitution.
The principle of judicial review was reiterated and followed by the Supreme Court in subsequent case law. In the subsequent case of [12]S.P Sampat Kumar v Union of India and L.Chandra Kumar v Union of India. The constitutional validity of Art 323 (A) and the provisions of Administrative Tribunals Act 1985 which excluded the jurisdiction of the High Courts under Art 226 and 227 was in issue. The Supreme Court held that the power of judicial review over the legislative action vested in the High Courts under Art 226 and the Supreme Court under Art 32 of the constitution is an integral and essential feature of the constitution and formed part of its basic structure.
The basic structure doctrine was yet again reaffirmed in the case of I.R.Coelho vs State of Tamil Nadu AIR 2007 SC 8617, in which the Supreme Court held that any law placed in the 9th schedule after April 24, 1974 will be open to challenge. The Court held that even through the Act is put in the 9th schedule by a constitutional Amendment its provisions would be open to challenge on the ground that they destroy or damage the basic feature of the constitution.
Supreme Court Advocates on Record Association vs Union of India, Writ Petition (Civil) No.13 of 2015, the National Judicial Appointments Commission Act was challenged on the ground that the NJAC violates judicial independence by creating a system in which the Chief Justice would no longer have primacy in judicial appointments and in which the judiciary would not have majority control over the NJAC in a system where the political influence of the executive and parliament would be dominant. Also it grants power to the parliament to change and alter judicial selection criteria and procedures, which constitutes the violation of judicial independence, separation of powers and Rule of Law.
The Supreme Court observed that the impugned Amendment and the Act are struck down as unconstitutional. pre-existing scheme of appointment of judges stands revived. However, the matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.
In J. P. Bansal v State of Rajasthan AIR 2003 SC , case of the S.C.I. has examined that the impartiality of the judiciary endangers in the community attention. Although the court interpreting the Constitution enjoys freedom. Under this freedom the court has not failed in interpreting the statute. The rule of law is the essential component of the judicial assessment, as soon as the court interpret statute and provide their own view for amending the statute. Such aforesaid judgment is the injurious to public interest.
[13]Supreme Court of India in P.U.C.L. & others v. U. O. I. AIR 2003, case examined that the court will not interfere on the political question and on the policy matter, unless it is essential for the judicial review. However, court can interfere only on the selective ground. The court further stated that the government has to be bound by all the accessible possibilities to avoid the violence inside the establishment of the Indian Constitution.
Shayara Bano vs Union Of India W.P.No. 118 of 2016 in this case supreme court of india held that triple talaq is a unilateral power given to the husband to divorce his wife and on the face of it, it looks arbitary therefore triple talaq is unconstitutional being violative of fundamental rights. Justice Nariman propunded Doctrine Of Manifest Arbitration and held that triple talaq is violative of Art 14 of the constitution of India.
In Joseph Shine vs Union of India AIR 2018 S.C.I held that sec 497 of Indian Penal Code is unconstitutional. Similarily before Supreme Court of India in Navjot Singh Joher vs Union of India AIR 2018 SC the constitutional validity of sec 377 was challenged on the ground that it violates fundamental right. Justice Chandrachud observed that " i am not bound by societal morality, i am bound by constitutional morality and if the constitution protects the interests of a single citizen of India i am bound to protect it". Therefore Sec 377 of I.P.C was decriminalized and was held to be unconstitutional.
Anuradha Bhasin vs. Union of India 2020 SC, The Union Territory of Jammu and Kashmir was directed by Supreme Court to review all orders suspending the internet services forthwith, all orders not in accordance with law must be revoked. Supreme Court held that the Freedom of Speech and Expression and the Freedom to practice any Profession or carry on any Trade, Business or Occupation over the medium of internet enjoys constitutional protection under Art 19 (1) (a) and Art 19 (1) (g). The restriction upon such fundamental rights should be in consonance with the mandate under Art 19 (2) and Art 19 (6) of the constitution inclusive of the test of Proportionality.
Although Doctrine of Judicial Review is the basic structure of the constitution of India, it is not justified in policy matters. However, it is justified in policy matters provided that the policy is arbitary, unfair or violative of fundamental rights. In [14]Kerala Bar Hotels Association vs State of Kerala, the Supreme Court held that the courts must be loathe to venture into an evaluation of state policy which must be given a reasonable time to pan out. If a policy proves to be unwise, oppressive or mindless, the electorate has been quick to make the government aware of its folly.
The Doctrine of Judicial Review is thus, the interposition of the judicial restraint on the legislative, executive and judicial actions of the government. It has assumed the status of permanence through judicial decisions laid down from 1973 till now. Thus, Judicial Review is the basic structure of the constitution of India and any attempt to destroy or damage the basic structure is unconstitutional.
Features Of Judicial Review
- Power of judicial review can be exercised by both the Supreme
Court and High Courts, as under Article 226 a person can approach
the High Court for violation of any fundamental right or for any
legal right. Moreover, under the Article 32 a person can move to the
Supreme Court for any violation of the fundamental right or for any
question of law. However, the final power to interpret the
constitution lies with the Supreme Court. The Supreme Court is the
highest court of the land and its decisions are binding all over the
country.
- Judicial Review of both state and central laws which means that
laws made by centre and state both are the subject to the judicial
review, altogether the laws, order, constitutional amendments,
bye-laws, ordinance and all other notifications are subject to
judicial review which are included in Article 13(3) of the
constitution of India.
- Judicial review is not applied automatically which means that
the concept of judicial review needs to be attracted and applied.
The apex court doesn't itself apply for judicial review; it can be
used only when a question of law or rule is challenged before the Hon'ble court.
- Judicial Review is governed by the principle of procedure which
is established by law as given under the Article 21 of the Indian
Constitution. However, the law has to pass the test of
constitutionality if it qualifies then it can be made a law and on
the other side, the court can declare it to be null and void.
- Judicial review of Ordinances, here, Article 123 and 213 of the
Indian constitution gives the president and the governor of the
state to pass an ordinance. And an act of ordinance by the president
or the governor is within the same restrictions which are placed on
parliament which makes any law. This power is used by the president
or governor in exceptional conditions only and this power should not
be used mala fide.
- Judicial review of Money Bill, here, Article 110(3) of the
constitution of India states that whenever a question arises for
whether a bill is a money bill or not the decision of the speaker of Lok Sabha shall be final. In the present
situation, a money bill is beyond the power of Judicial Review.
- Grounds for Judicial Review, where the Constitutional Amendment Judicial Review in this phase is done for all the constitutional amendments done by the authority. All the amendments which are in violation of the fundamental rights are declared to be void and it is held to be unconstitutional. Altogether, the judicial review for the constitutional amendments can be traced in history.
The extent of this judicial review in the Indian courts emerged in three dimensions; first, to establish the fairness in administrative action, second, to protect the guaranteed constitutional fundamental rights and finally, to rule on questions of legislative competence between the Centre and the states.
The Judicial Review (As A Part Of The Basic Structure)
In the landmark case of Kesavananda Bharati v. the State of Kerala AIR 1973 SC 1461, which was decided by a nine judge bench the doctrine of the basic structure was laid down, which stated that any law that is made should not be in violation of the fundamental rights and if the amendments are made then it should be made as such that they do not eradicate the basic structure. Basically, the legislature has power to amend the Constitution, but such amendments shall not change the basic structure of the Constitution.
However, it was further noted that the basic structure was built on the foundation of dignity and freedom of the individual which undoubtedly couldn't be amended. It was also noted that in this case the above are only illustrative and not comprehensive of all the limitations on the power of amendment of the Constitution.
It was also observed that fundamental rights are of utmost importance and they should be preserved with all due respect by the state and provisions should be made to protect them and abrogate them. Along with this notion, this case raised questions on the constitutionality of the 25th amendment and hence, declared that the basic structure of the fundamental rights should not be violated by the legislature or the state under the provisions of the Article 368 and the second part of the Article gave the jurisdiction of the court, a boot.
In another important case of Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, the extended portion of Article 31C was eradicated completely with the rationale that it attacked the fundamental rights under Article 368. In this the judgment also stood up for the concept of the judicial review which is not made available to the people in case of infringement of the fundamental rights.
In the case of S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124 at 128 relying on Minerva Mills Ltd. Case it was stated that it was well settled and established that judicial review was a basic and essential feature of the Constitution. Moreover, if the power of judicial review was absolutely eliminated, the Constitution would lose its basic structure.
Judicial Review With Refrence To Articles 31-A, 31-B, 31-C
[15]Article 31-A was added to the Constitution of India by the First Amendment, 1951. The fourth amendment substituted various clauses in it. This Article of Indian Constitution gave the people of India the right to hold and dispose of their property as they see fit. According to which, the government can acquire the property of the people and by doing so, the fundamental rights mentioned in Article 14 and 19 of Indian Constitution should not be violated.
Moreover, in other words, Article 31 A of Indian Constitution was immune to Article 14 and 19 of Indian Constitution that provide for right to equality and the right to freedom respectively, and this amendment helped in the abolition of the Zamindari system as the government took the land from the Zamindars and used it for public welfare by either redistribution or agriculture.
The government also took control of different private companies in order to use them for enhanced growth. However, this could be done for a fixed amount of time after which, the control had to be returned and the government redistributed the mining rights from mine lords and took control of the production and the distribution of various other resources.
In [16]Waman Rao & ors v. UOI & ors. and I R Coelho v. State of TN case, the first amendment in which the Article 31A was introduced and the fourth amendment was held to be constitutional, which substituted the new clauses to this Article. Hence, relying on the judgments of Minerva Mills case and Waman Rao case and I R Coelho case Article 31A can be stated as constitutionally valid.
Article 31-B is also the result of the 1st Amendment Act of 1951, it was added as a constitutional device to protect the specified statutes from any attack on the basis that they infringe Part III of the Constitution. Moreover, it has retrospective effect which is clear from the words ever to have become void. It is in reference with the acts and laws mentioned in the IX Schedule of the Indian Constitution, moreover, the IX Schedule of Indian Constitution is a list of acts and laws which in the court of law cannot be challenged.
In other words, basically any such acts mentioned in this schedule are out of the reach of the Indian judiciary. Article 31b of the Indian Constitution states that the provisions mentioned in Article 31a are immune from Indian judiciary and therefore cannot be invalid on the basis that they might violate the fundamental rights under the Articles 14, 19 and 31 of Indian Constitution.
[17]Article 31-C of Indian Constitution was included through the 25th amendment act of 1971 through which the government tried to give primacy to some Directive Principles of State Policy over the fundamental rights. It also provides immunity from any challenge on the basis of violation of the Articles 14, 19 and 31, and any law enacted for implementing the directives in clause (b) and (c) of Article 39.
The Supreme Court in the case of Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. AIR 1983 SC 239, struck down article 31C as unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it destroys the basic features of the Constitution. The objectives were set out in the Part IV has to be achieved without abrogating the means provided for by Part III. Thus, there's no conflict between the directive principles and the fundamental rights as these are meant to supplement one another and the Court held that article 31C as originally introduced by the 25th Amendment is constitutionally valid.
There are two conditions which must be fulfilled for the execution of the Article 31 C; firstly, a law for giving affect to the policy of the state to implement a Directive Principle in Article 39(b) or (c). Secondly, the Legislature made a declaration to that effect.
However, the question that whether or not the act is meant to secure the aim contained in Article 39(b), (c) doesn't depend on the declaration made by the legislature but on the contents of the act as found by the court.
A Legal Outlook In Regard To Constitutional Amendments
Judicial Review in this period is done for all the constitutional amendments done by the authority and all those amendments which are in violation of fundamental rights are declared to be void and it is held to be unconstitutional. All the judicial review for the constitutional amendments can be traced in history. We have already seen in the above-mentioned case laws that the constitutional amendments were challenged and all those against the constitution are declared unconstitutional and held void. We can trace the marks of judicial review of the constitutional amendment in the above-mentioned cases.
The role of Judicial Review in Indian Constitution is to protect and provide liberty and freedom to the people. Some thinkers of India have observed that the scope of judicial review in India is very limited and the courts in India do not enjoy as wide jurisdiction as the courts in America.
The right to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law such as first, habeas corpus which is to direct to release a person who is detained unlawfully, second, mandamus which is to direct a public authority to do its duty, third, quo warranto which is to direct a person to leave an office assumed wrongfully, fourth, prohibition which is to prohibit a lower court from proceeding on a case and lastly, certiorari where the power being given to the higher court to remove a proceeding from a lower court and bring it before itself.
The [18]review of constitutional Amendments by judiciary in relation to Fundamental Rights and its legal Validity has been a debatable Political issue. The doctrine of basic Structure has allowed the application of judicial review to Constitutional amendments involving Fundamental Rights also.
This doctrine evolved in Kesavananda Bharati case, 1973, moreover, the parliament can amend the constitution under the Article 368 but such amendments should not take away or violate the fundamental rights and any law made in contravention with this rule shall be made void (Article 13).
As we have seen in the Kesavananda Bharati case the constitutional validity of 24th amendment (Enables Parliament to dilute Fundamental Rights through Amendments of the Constitution, and empowers it to amend any provision of the Constitution), 25th amendment (The amendment also exempted any law giving effect to the article 39(b) and (c) of Directive Principles of State Policy from judicial review, even if it violated the Fundamental Rights) and 29th amendment was challenged. The Court upheld the 24th Amendment Act and held that even though the Parliament is entitled to amend any provision of the Constitution it is void since it takes away invaluable fundamental rights.
Even in the case of Golak Nath vs. State of Punjab AIR 1967 SC 1643, the Validity of three constitutional amendments (1st, 4th and 17th) was challenged and it was upheld that Amending power and legislative Power of the Parliament were essentially the same. Which means that the Amendment Acts under Article 368 Cannot amend Fundamental Rights, as it Would Violate Article 13. In this case it for the first time the doctrine of prospective overruling was applied and it was held that the 17th amendment will be valid.
The court regarding the judicial review process has evolved few guidelines which are to be used as guide in the process, which are;
- Doctrine of Severability:
While interpreting the impugned law, the court needs to see whether or not the law as a whole or some parts of it is unconstitutional. The Court can declare the impugned law, as an entire or a part of it, unconstitutional as the case may be.
- Doctrine of Progressive interpretation:
The Indian judiciary has been guided by the doctrine of progressive interpretation, which means that the Courts have interpreted the provisions of the Constitution in the light of the Social, economic and legal Conditions present at that point of time.
- Doctrine of Prospective Overruling:
It is based on the premise that judicial invalidation or a new view of interpretation of law won't affect the past transactions or the vested rights but will be effective regarding future transactions only.
- Doctrine of Empirical Adjudication:
While exercising the power of judicial review, the Courts should make sure that they are not dealing with hypothetical cases, and therefore, it is necessary that the matter brought before the court must be of a concrete nature. The court between the parties concerned in a particular case seeks to confine its decisions as far as practicable within the narrow limits of the controversy.
- When the Constitutional validity of any law is challenged, the court will not hold it to be ultra vires unless the invalidity is obvious from all doubts, for there is always a presumption in favor of its validity. The court always begins with this presumption that the legislature doesn't exceed its powers, nor does it make any law that's inconsistent with the spirit of the Constitution.
- Violation of fundamental rights
- Violation of various other constitutional restrictions embodied in the constitution
- Enactment of legislative act in violation of constitutional mandates regarding distribution of powers
- Delegation of essential legislative power by the legislature to the executive or any other body
- Violation of implied limitations and restrictions
When we talk about come judicial review of administrative action though the presumption of validity is not as strong in the case of administrative action as in the case of statutes. However, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint.
It is also said that the question the legality of the exercise of discretionary power cannot be questioned unless and until it is an abuse of discretionary power, which includes mala fide exercise of power or, exercising the power for an improper motive or, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases the unreasonable exercise of power and the non-exercise of discretion which comes when the power is exercised without proper delegation and when it is acted under dictation.[19]
Criticism Points
- The observer describes the judicial review as an undemocratic system; it empowers the court to make a decision on the fate of the laws passed by the legislature, which represent the sovereign will of the people.
- The Constitution of India doesn't clearly describe the system of judicial review; it rests upon the idea of several articles of the constitution.
- When a law is struck down by the Supreme Court as unconstitutional, the decision becomes effective from the date on which the judgment is delivered. Moreover, a law can face judicial review only when an issue of its constitutionality arises in any case being heard by the Supreme Court. As such, when the court rejects it as unconstitutional, it creates administrative problems, and the judicial review decision can create more problems than it solves.
- Moreover, many critics of the judicial review system see it as a reactionary system, as they say that while determining the constitutional validity of any law, the Supreme Court often takes a legalistic and conservative approach, thus it can also reject progressive laws enacted by the legislature.
- Judicial review may cause delay and inefficiency. The people in general and the law-enforcing agencies, especially sometimes plan to go slow or keep their fingers crossed in respect of the implementation of a law. However, they too prefer to attend and let the Supreme Court first decide its constitutionality during a case which will precede it at any time.
- It has been noted that on several instances the Supreme Court reversed its earlier decisions. The judgment in the Golaknath case reversed the earlier judgments and the judgment in the Kesavananda Bharati case reversed the judgment in the Golaknath case. Same way the enactment was held justifiable, and then invalid and then again justifiable and such reversals also reflect the element of subjectivity within the judgments.
A large number of the supporters of judicial review don't accept the arguments of the critics; they argue that judicial review is an essential and very useful system for Indian liberal democratic and federal system. It has been playing an important role and desired in the protection and development of the constitution.
It is observed that Judicial Review is essential for maintaining the supremacy of the Constitution and for checking the possible misuse of power by the legislature and executive. It is also a device for protecting the rights of the people.
The grant of judicial review power to the judiciary is also important for strengthening the position of judiciary. It is also important for securing the independence of the judiciary. It was noted that the power of Judicial Review has helped the Supreme Court of India in exercising its constitutional duties.
Conclusion
As we know the judicial review is very important but at the same time absolute power to review cannot be granted and by observing the judicial review as a part of basic aspect of the Indian Constitution and the courts in India have given altogether a different meaning to the theory of checks and balances. Judicial review also plays a vital role as protector of the values of the constitutional and over the legislative action is vested in the high court's and Supreme Court under Articles 226 and 32 of the Indian constitution respectively. It is observed that the Constitution of India, the supreme law of the land believes that amend your procedures and doings to improve in the future.
The[20] Constitution 44th Amendment Act, 1978, signifies the demise of the fundamental Right to Property, where the property right turned out to be the most controversial right with lots of reforms and criticism along with it. With the [21]Article 31, Article 19(1) (g) and Article 31C being stated as unconstitutional and its second part being shifted to Article 300A for making the fundamental right a constitutional right, the property law kept diminishing. Ultimately, we have developed the concept of judicial review and it has become the part of basic structure in case of Minerva Mills v. Union of India, and the basic structure doctrine also helps in preserving and protecting the spirit of the constitution and to preserve the nature of democracy of India and protect the right of the people.
Moreover, we also see that any amendment or law which is violative of the rights of the people are struck down by the court on the basis of the basic structure doctrine and thus any law that tries to change the basic structure of the constitution is therefore invalid. So, it is correct to say that judicial review has grown to safeguard the individual right, to stop the use of arbitrary power and to prevent the miscarriage of justice.
End-Notes:
- Lavanya Kaushik, 'The place of judicial review in Indian Constitution & its history'
- K.K Ghai, 'Judicial Review in India: Meaning, Features and Other Details'
- legislative.gov.in/amendment-acts
- india.gov.in/my-government/constitution-india/amendments
- L.Chandra Kumar v. Union of India AIR 1997 SC 1125
- Brij Bhurshan vs. State of Delhi AIR 1950 SC 129
- Shankari Prasad vs Union of India AIR 1951, SC 455
- Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845
- Keshvananda Baharti's case AIR 1973 SC 1461
- ADM Jabalpur vs. Shivakant Shukla AIR 1976 SC 1207
- Minnerva Mills Ltd vs. Union of India AIR 1980 SC 1789
- S.P Sampat Kumar v Union of India AIR 1987 SC 386 and L.Chandra Kumar v Union of India AIR 1997 SC 1125
- Supreme Court of India in P.U.C.L. & others v. Union Of India AIR 2003
- Kerala Bar Hotels Association vs State of Kerala AIR 2016 SC 163
- Diganth Raj Sehgal, 'Articles 31A to 31C of Indian Constitution'
- Waman Rao & ors v. Union of India & ors (1981) 2 SCC 362 and I R Coelho v. State of Tamil Nadu 2007 (1) SC 137
- Dev, 'Ninth Schedule Article 31A-31B of the Constitution through the Kaleidoscope of the Principles it stands on'
- Mohammad Moin Uddin and Rakiba Nabi, 'Judicial Review Of Constitutional Amendments In Light Of The Political Question Doctrine: A Comparative Study Of The Jurisprudence Of Supreme Courts Of Bangladesh, India And The United States'
- Amogh Dabholkar & Vaishnavi Kamble, 'Fundamental Duties as a mean to achieve responsible Citizenry'
- Negi Mohita, 'The Significance of the 24th Amendment to the Constitution of India'
- Laxman Singh Dudi, 'Emergence of Article 31 A, B and C and its validity'
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