(Indian Polity) THE JUDICIARY - Constitutional Amendments and the use of Judicial Review


Constitutional Amendments and the use of Judicial Reviewhttp://www.iasplanner.com/civilservices/images/indian-polity.png

The Supreme Court’s Power of Judicial review extends to Constitutional Amendments. However, review of constitutional Amendments by judiciary in relation to Fundamental Rights and its legal Validity has been a Contentious Political issue. The doctrine of ‘basic Structure’ has enabled the application of judicial review to Constitutional amendments involving Fundamental Rights also. This doctrine evolved in Kesavananda Bharati case, 1973. Parlaiment Can amend the constitution Under Article 368 but Such amendments Should not take away or violate Fundamental Rights and any law made in contravention with this rule Shall be void (Article 13).

Until 1967, the Supreme Court up held that the Amendment Acts were not ordinary laws and thus Constitutional Amendment Acts did not violate Article 13 and so the Constitution. [Art. 13 (2) says, The State Shall not make any law which takes away or abridges the rights Conferred by this part and any law made in Contravention of this Clause Shall, to the extent of the Contravention, be void] It meant that through Constitutional Amendment Act the parliament Could amend any provision of the Constitution (including the Fundamental Rights). It was in the Golak Nath vs. State of Punjab case in 1967, where the Validity of three constitutional amendments (1st, 4th and 17th) was Challenged, that the Supreme Court reversed its earlier decision . It upheld that, Amending power and legislative Power of the Parliament were essentially the same. Must be deemed as a law’ as understood under Article 13. That means Amendment Acts under Article 368 Cannot amend Fundamental Rights, as it Would Violate Article 13. In effect, the parliament had limited amending power.

[Article 368] – Power of Parliament to amend the Constitution and Procedure there for:
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its Constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.]

In the Kesavananda Bharati V. State of Kerala Case in 1973, the Constitutional Validity of the twenty-fourth, twenty fifth and twenty ninth amendments was Challenged. The 24th Amendment Act enlarged the Scope of Parliament by empowering it to amend Part III of the Constitution also. The Court upheld 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. In the Minerva Mill Case (1980), the Supreme Court Confirmed the Principle of Judicial review, already used in many of its previous Judgements. The 42nd Constitutional Amendment of 1976 among other things had added a Clause to Article 368 placing a Constitutional amendment beyond Judicial review. The Court held that Judicial review is the ‘basic feature’ of the Constitution and it Cannot be removed by any authority. Since then Judicial review has been an established feature of the Constitution.

Some guidelines in judicial Review

The Courts have evolved Certain doctrines to be used as guide in the process of Judicial review.

I. Doctrine of Severability: While interpreting the impugned law, the court has to see whether the law as a whole or some parts of it is unconstitutional. The Court Can declare the impugned law, as a whole or any part of it, unconstitutional as the case may be.

II. Doctrine of Progressive interpretation: The Judiciary in Indian 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 prevailing at that point of time.

III. Doctrine of Prospective Overruling: It is based on the premise that judicial invalidation or new view of interpretation of law will not affect the past transactions or Vested rights but will be effective as regards future transactions only.

IV. Doctrine of Empirical Adjudication: While exercising the power of Judicial review. the Courts are not supposed to deal with hypothetical cases and therefore, it is necessary that the matter brought before a Court must be of a ‘Concrete’ nature. The Court Seeks to Confine its decisions, as far as practicable, within the narrow limits of the Controversy. Between the parties Concerned in a particular case.

V. Presumption in favour of Constitutionally: When the Constitutional Validity of any law is Challenged, the Court will not hold it to be ultra vires unless the invalidity is clear from all doubts, for there is always a presumption in favour of its Validity. The Court always begins with this presumption that the legislature does not exceed its powers, nor does it make any law that is inconsistent with the spirit of the Constitution.

Limitations of Judicial Review

The Supreme Court of India, While interpreting a law, will not itself legislate. It is not Supposed to Question the reasonableness of any law except where the Constitution has expressly authorized the Court to exercise the power, Normally, it works according to the procedure established by law.

The Ninth Schedule stands as a rare exception to the principle of Supremacy of the fundamental rights of the citizen, as well as to the exclusive power granted to the judiciary in matters of evaluating and recognizing laws proposed by the legislature. The Ninth Schedule is not Subject to Judicial review. except under the doctrine of basic structure. That means the parliament has the power to save the laws from judicial review by listing them in the Ninth Schedule, provided such laws do not violate the basic structure of Constitution. The Ninth Schedule itself is not Subject to Judicial review as the doctrine of basic structure is not applied to provisions before 24th April, 1973 (Kesavananda Verdict).

The principle of locus standi was earlier essential though now it is being relaxed. This means that only a person aggrieved by an administrative action or by an Unjust provision of law shall have the right to move the Court for redressal. Under this traditional rule a third party who is not affected by the action cannot move the Court. Another limitation is that before a person moves the High Courts and the Supreme Court invoking their extraordinary jurisdiction, he Should have exhausted all alternative remedies.

Assessment of Judicial Review

Judicial review is one of the important techniques by which the Courts examine the actions of the legislature, the executive and the other governmental agencies and decide whether or not these actions are valid and within the limits set by the Constitution. However, the Concept of Judicial review has been subjected to serious criticism. It has been Closely associated with judicial activism. It tends to elevate the Judiciary to the rank of Super legislature. It has clearly undermined the Status of Parliament. Further ,the exercise of Judicial review by the Court has obstructed the passage of progressive social legislation in India. Again, it has opened the floodgates for litigation and also given rise to friction and tussle among the Various organs of the Government.

Despite its adverse effects, the Concept of Judicial review also has its utility. It is also beyond doubt that judicial review exercised by Supreme Court and High Courts has played a crucial role in ensuring Constitutional government in India by keeping the Union and State governments within their respective jurisdictional spheres. By liberal interpretation, it also imparted a new meaning and dimension to the provisions of the constitution as per the suitability of Changed circumstances. Most importantly, it has ensured genuine freedom of the citizens (with liberal interpretation of the Concerned provisions there by enlarging the Scope of it) by protecting their Fundamental Rights against the undue interference by the legislature and the executive.

Curative Petition

Under Article 137 of the Constitution, a ‘review petition’ may be filled in the Supreme Court after the delivery of its judgement. The Court may review the Case under its inherent power but on very restricted grounds. A ‘ Curative petition’ Can be filled seeking review of a decision which has become final after dismissal of a review petition under Article 137.

Some of the grounds on which such a petition Can be entertained are:

  • Violation of the norms of natural justice;
  • Disposal of the matter ex parte;
  • Abuse of the process of the Court;
  • A Case in which the learned Judge failed to disclose his links with the party or his Connection with the Subject matter; or
  • The judgment had adversely affected the interests of the petitioner.


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