Judicial Review of the Constituent Power

Judicial review is rooted in the principle that constitution is the fundamental law, all governmental organs must not do anything which is inconsistent with the provisions of constitution; and the theory of ‘limited government.’ when a contradiction between the constitution and enacted law exists, it is the duty of judges to resolve it. Thus, judicial review of the constituent power  makes constitution legalistic. In a federal system, judicial review of the constituent power  is a necessary consequence to have an independent and impartial judiciary to resolve disputes.

‘Judicial Review’ means that the judiciary can declare a law or legislation as unconstitutional if it is beyond the competence of legislature according to the distribution of powers (under article 246), or it is in contravention of fundamental rights or any of the mandatory provisions of the constitution (For Example, article 301, 304). Even in the absence of such express constitutional provisions, the court can invalidate a law which contravenes any right or is ultra vires, for such power of judicial review follows from the very nature of the constitutional law. Thus, under article 132, the substantial question of law as to the interpretation of constitution is referred to the Supreme Court. The ‘reasonable restrictions’ in case of fundamental rights are subject to court’s supervision. Judicial review is thus ‘the interposition of judicial restraint on the legislative as well as executive organs of the government.

In AK Gopalan V. State of Madras, the power of judicial review was firmly established and the limitations for its exercise were clearly enunciated. In India, the position of the judiciary is somewhere in between the courts in England and the US. In England, a law duly made by parliament cannot be challenged in any court. The English courts have to interpret and apply the law; they have no authority to declare such a law illegal or unconstitutional. In United States, the Supreme Court is supreme and can declare any law unconstitutional on the ground of its not being in “due process of law.”

Under Article 245(1), the legislative powers conferred under article 246 are also made “subject to the provision of constitution.” Article 13(2) provides as follows: “the state shall not make any law which takes away or abridges the right conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” thus, this article protects the fundamental rights.

Shankari Prasad v Union of India– The concept of the basic structure of the constitution evolved over time. In this case, the SC contended that the Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well. In this case first time the question whether fundamental rights can be amended under Article 368 came for consideration of the Supreme Court. In that case the Validity of the First Constitutional Amendment which added Article 31-A and 31-B of the Constitution was challenged. It was contended that though it may be open to Parliament to amend the provisions in respect of the fundamental rights, the amendments, would have to be tested in the light of the provisions contained in Art.13(2) of the Constitution.

The Supreme Court, with a bench of five judges, unanimously rejected the contention that in so far as the First Amendment took away or abridged the fundamental rights conferred by Part III it should not be upheld in the light of the provisions of article 13(2). Shastri J: delivering the judgment of the court said that although “law” must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in the exercise of legislative power, and constitutional law, which is made in the exercise of constituent power. Dicey defines constitutional law as including “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State.” The terms of Art. 368 arc perfectly general and empower Parliament” amend the Constitution, without any exception whatever.

Sajjan singh case– The validity of the Seventeenth Amendment was challenged in this case. The main contention before the five-judge bench of the Supreme Court was that the Seventeenth Amendment limited the jurisdiction of the High Courts and, therefore, required ratification by one-half of the States under the provisions of article 368. The court unanimously disposed of this contention, but members of the court chose to deal with a second submission, that the decision in the Shankari Prasad case should be reconsidered. The Chief Justice in delivering the view of the majority expressed their full concurrence with the decision in the earlier case. The words “amendment of this constitution” in article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution; it would, therefore, be unreasonable to hold that the word “law” in article 13(2) took in Constitution Amendment Acts passed under article 368.

Keshvanandan bharti case- This was a landmark case in defining the concept of the basic structure doctrine and judicial review of constituent power. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” The judgement implied that the parliament can only amend the constitution and not rewrite it. The power to amend is not a power to destroy. This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.

The 24th Amendment was the first of a series of several constitutional amendments designed to weaken the judiciary, and enhance the authority of Parliament and the Prime Minister’s office. In GolakNath’s case, the Supreme Court held that the amendment of the Constitution under article 368 is “law within the meaning of Article 13 of the Constitution so a Constitutional Amendment which takes away or abridges a fundamental right would be void. 24th Amendment Act made clear that provisions in article 13 does not apply to constitutional amendment made under article 368. Article 13(4) and 368(3) were inserted through 24th Amendment. Article 13 (4) says “Nothing in this article shall apply to any amendment of this Const constitution”. The new heading is “power of parliament to amend the constitution and procedure thereof.”

Limits of Judicial Review of the Constituent Power

Dr. Ambedkar in the drafting committee of the constituent assembly stated that article. 32 were the “most important” article and that “it is the very soul of the constitution and the very heart of it.” Article 32(1) guarantees the right to move Supreme Court by ‘appropriate proceedings’ for the enforcement of fundamental rights (Part III of the constitution). Clause (2) – deals with Supreme Court’s power to issue directions, order or writs, whichever may be appropriate, for the enforcement of fundamental rights.

In RN Kumar verses Municipal Corp. Of Delhi, a two-judge bench of the supreme court held that the citizens should not come to the court directly for the enforcement of their fundamental rights, but they should first seek remedy in the high courts and then if the parties are dissatisfied with the high court’s judgment, they can approach the supreme court by way of appeal. In this case, the petitioner challenged the imposition of various taxes on their hotel. Disposing the petition the apex court laid down following guidelines for the exercise of the right under art. 32:

(1) The scope of article. 226 are wider than article. 32.

(2) Hearing of the case at the level of high courts is more convenient to the parties. it saves lot of time.

(3) The high court has its own tradition and eminent judges/ lawyers,

(4) The Supreme Court’s workload is too much with cases pending before it for the last 10-15 years.

Article 32 thus provides an expeditious and inexpensive remedy for the protection of fundamental rights from legislative and executive interference. However, a petition under article 32 may be filed to challenge the validity of a law with reference to a provision other than those involving fundamental rights, provided it inevitably causes a restriction on the enjoyment of fundamental rights.

The Supreme Court cannot refuse relief under article 32 on the ground that the aggrieved person may have his remedy from other court (a person need not first exhaust the other remedies and then go to the supreme court); the disputed facts have to be investigated before the relief given; and that petitioner has not asked for proper writ applicable to his case.

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Author details: SAKSHI RAWAT (University of Petroleum & Energy Studies, Dehradun)

The views of the author are personal only.