Title of the project

Comparative Study on Amending Process: Constitutional Provisions v/s

Judicial Approach in India"
Submitted by
Arjun Singh
Division B Roll No 62 Class B of
Symbiosis Law School, NOIDA
Symbiosis International University, PUNE
In Month, year
Under the guidance of Name of guide
Prof. Madhuker Sharma
Designation and official address of research guide
Chief Course Faculty
madhuker@symlaw.edu.in

CERTIFICATE
The project titled .
submitted to the Symbiosis Law School, NOIDA for Comparative Constitution as
part of Internal Assessment is based on my original work carried out under the
guidance of Dr. Madhuker Sharma from 6th February to 28th February, 2015 The
research work has not been submitted elsewhere for award of any degree. The
material borrowed from other sources and incorporated in the thesis has been duly
acknowledged. I understand that I myself could be held responsible and
accountable for plagiarism, if any, detected later on.
Signature of the Candidate

Date:

Introduction:Judicial Review basically is an aspect of judicial power of the state which is

exercised by the courts to determine the validity of a rule of law or an action
of any agency of the state. In the legal systems of modern democracies it
has very wide connotations. The judiciary plays a very important role as a
protector of the constitutional values that the founding fathers have given
us. They try to undo the harm that is being done by the legislature and the 3
executive and also they try to provide every citizen what has been promised
by Constitution. All this is possible because of the power of judicial review.
India is lucky enough to have a constitution in which the fundamental rights
are enshrined and which has appointed an independent judiciary as guardian
of the constitution and protector of the citizens liberties against the forces of
authoritarianism. In a true form of democracy, the rule of a fearless
independent and impartial judiciary is indispensable and cannot be overemphasized.
Judicial review of legislation is a result of two of the most fundamental
features of Indian constitution. The first is the two-tier system of law with
the constitution as the Supreme law and other legislation being the ordinary
law which is valid only in so far as is consistent with the constitution. The
Second is the separation of the legislative, the executive and the judicial
powers of the state. The exercise of each of these powers is a function of the
Legislature, the executive and the Judiciary as a separate organ of the State.
Deriving their powers from the constitution, the legislatures in India enact
statutes. There is a two-fold limitation on the validity of the statues. The
Legislatures must have the competence to enact them. Secondly, they must
not conflict with the constitution. They would be invalid to the extent of their
repugnancy with the constitution. Judicial Review stands for something
which is done by a court to examine the validity or correctness of the action
of some other agency..
The constitution vests in judiciary, the power to adjudicate upon the
constitutional validity of all the laws. If a laws made by parliament or state
legislature violates any provision of the constitution, the Supreme Court has
power to declare such a law invalid or ultra virus. So the process of judicial
scrutiny of legislative acts is called Judicial Review. Article 368 of the
Constitution gives the impression that Parliament's amending powers are
absolute and encompass all parts of the document. But the Supreme Court
has acted as a brake to the legislative enthusiasm of Parliament ever since
independence. With the intention of preserving the original ideals envisioned
by the constitution-makers. To Abraham Lincoln, democracy meant a
Government of the people, by the people and for the people. So in
democratic nation whenever any law passed by parliament violates any
provision of constitution or takes away any fundamental rights of the person,
the Supreme Court has right and power to strike down that law or act.

According to me this jurisdiction of Supreme Court is essential for protection

of basic features of the constitution.
Judicial Review in India
The system of judicial review is also applicable in India. Although the term
Judicial Review has not been mentioned in theConstitution, the provisions of
various Articles of the Constitution of India have conferred the power of
judicial review on the Supreme Court. Accordingly the constitutional validity
of a legislative enactment or an executive order may be challenged in the
Supreme Court on the following grounds
1. Violation of fundamental rights.
2. Outside the competence of the authority which has framed it.
3. It is repugnant to the Constitutional provisions.
The Supreme Court considerably widened the scope of judicial review in
India through its judgement in Maneka Gandhis case. In this case, the
Supreme Court accepted the concept of natural justice as one essential
component of law thereby importing the American concept of due process of
law into our Constitution.
In the case of Charanjit Lal v. The Union of India1, Justice Mukherjee
observed: The court should prima facie lean in favour of constitutionality
and should support the legislation if it is possible to do so on any reasonable
ground. In pursuance of this attitude the Supreme Court of India has
enunciated the doctrine of severability, which implies that only those
portions of the law are declared as void which are inconsistent with the
provisions of the Constitution and the rest of the law is permitted to operate.
The Courts in India have exercised power of judicial review with great
restraint and attached more importance to the express words of
the Constitution rather than the spirit of the Constitution.
CONSTITUTIONAL PROVISIONS
Judicial Review under the Constitution of India stands in a class by itself.
Under the Government of India Act of 1935, the absence of a formal Bill of
Rights in the constitutional document very effectively limited the scope of
Judicial Review power to an interpretation of the Act in the light of the
division of power between the centre and the units. Under the
present Constitution of India the horizon of judicial review was in the logic of
events and things, extended appreciably beyond a formal interpretation of
federal provisions.
1 1951 AIR 41, 1950 SCR 869

The debates of Constituent Assembly reveal, beyond any dispute, that the
judiciary was contemplated as an extension of the Rights and an arm of the
social revolution. Judicial Review was accordingly, desired to be an essential
condition for the successful implementation and enforcement of the
Fundamental Rights. Members of Constituent Assembly were agreed upon
one fundamental point that Judicial Review under the new Constitution of the
U.S.A., where the doctrine was more an inferred than a conferred power
and more implicit than expressed through constitutional provisions.
In the Report of the abhor Committee of Supreme Court, it was
recommended that a Supreme Court with jurisdiction to decide upon the
constitutional validity of acts and laws can e regarded as a necessary
implication of any federal scheme. This was eventually extended to an
interpretation of the laws and executive orders on the touchstone of the
Fundamental Rights. In the Draft Constitution of India, this power of Judicial
Review in relation to fundamental rights found formal expression in Art. 8
(2) and Art. 25 (1) & (2) which, when adopted by the nations
representatives in the Constituent Assembly on November 26, 1949, became
the new Arts. 13 (2) and 32 (1) & (2), respectively, under the Constitution of
India.
However there was a sharp controversy among the members of the
Constituent Assembly over the perpetually veered question of reconciling the
conflicting concepts of the individuals fundamental and basic rights and the
socio-economic needs of the nation.
As a result Judicial Review, which was recognized as the basic and
indispensable precondition for safeguarding the rights and liberties of the
individuals, was sought to be tempered by the urge for building up a new
society based on the concept of welfare and social righteousness. The
consequence was a drastic curtailment of the power of judicial Review of the
Supreme Court of India. The overriding need for security of the State
consequent on the partition of India and its after-math, and growing
fissiparous and subversive tendencies, merely provided further impetus to
the process and made it a fait accompli. What happened as a result was that
the much debated Due Process Clause, which was previously inserted in the
original DraftConstitution, became the first casualty, and was eliminated
from the purview of the Rights to Personal Liberty. Under Art. 21 of the
new Constitution of India, it was replaced by except according to procedure
established by law, and in Art. 31 (1) it was substituted by save by
authority of law.
Simultaneously with this new awakening, a cluster of provisions was
incorporated into the constitutional document so as to restrict the rights

envisaged in Arts. 19, 21, and 31, and reduce the Supreme Courts power of
Judicial Review to one of formal review. Lest Judicial Review stood in the
way of social and economic progress, the door was kept wide open, through
a comparatively flexible amending procedure, to impose the ultimate will of
the popular representatives in the matter of removing constitutional
limitations.
JUDICIAL APPROACH
The foundation of the Indian Supreme Courts Review-power was laid firmly
and well in the case of A.K. Gopalan v. State of Madras2. This case not only
elucidated the principle of Judicial Review and the basis on which it would
rest in future, but at the same time evolved a set off guidelines which would
eventually set the pattern for the fundamentals of judicial approach to the
Indian Constitution. Form Gopalan to Golaknath3 is, indeed, a long march,
not only in respect of the nature and scope of Judicial Review itself, but in
regard to the impact and consequences of such Review on the attainment of
social objectives, too.
These two cases represent two distinct lines of judicial thinking, two distinct
tendencies, and, also two separate sets of social philosophy. One represents
a halting, over-cautious and tradition-bound attitude of the judiciary in
restricting its own freedom of action by sticking to the express phraseology
of the Constitution, scrupulously avoiding the nations of Natural Justice and
Due Process, and construing the law in favour of the legislature; the other
represents a big, bold, and almost revolutionary effort to resurrect Judicial
Review by expanding its horizon beyond a literal interpretation of
the Constitution, introducing novel concepts like prospective overruling and
convening a Constituent assembly to amend the Fundamental Rights, and by
prohibiting any legislative amendment of Fundamental Rights in future. The
Gopalan decision, while restricting the ambit of the individuals rights to
freedom and personal liberty, paved the way to the realization of the social
objectives by its clear enunciation of the principle of judicial subordination to
legislative wisdom and discretion, and by its emphasis on social control of
individual liberties. The Golaknath case, while trumpeting the individuals
basic liberties as sacrosanct and transcendental, has indeed, made it almost
impossible to enact social welfare legislation.
The Supreme Court of India has used the power of judicial review in various
cases. We may refer to the Golaknath case (1967), the Bank Nationalisation
2 1950 AIR 27, 1950 SCR 88
3 I.

C. Golaknath & Ors vs StaTE OF PUNJAB & ORS. 1967 AIR 1643, 1967

SCR (2) 762

case (1970), the Privy Purses Abolition case (1971), the Keshwananda Bharti
case (1973), the Minerva Mills case (1980) and so on. However while
exercising the power of judicial review, the Supreme Court has never
adopted the American practise as it is.
One of the most significant cases decided by the Supreme Court was
Golakhnath case of 1967in which the Supreme Court held that the
Parliament has no right to abridge or abrogate the Fundamental Rights
granted by the Constitution through an amendment of the Constitution. Thus
it made the Fundamental Rights transcendental and superior to the
constituent power of the Parliament through its power of judicial review. The
Supreme Court continued this attitude in the Bank Nationalisation and Privy
Purses cases and challenged the right of the Parliament to curtail the
fundamental rights by the Parliament. This attitude of the Supreme Court
obliged the Congress Government to effect 24th, 25th and 26th
amendments in the Constitution. It also made a bid to curtail the right of the
Supreme Court to declare a law affecting Fundamental Rights under article
14, 19 and 31 as void of the law was passed to give effect to the Directive
Principles under Article 39 (b) or (c). These amendments were challenged in
the Keshwanand Bharati case.
During the emergency a bid was made to restrict the scope of judicial review
through the Forty-Second Amendment. The power to determine the
constitutional validity of the central laws was exclusively vested in the
Supreme Court and the High Courts were deprived of their right in this
regard.
The Janata Government on assumption of power made a bid to restore the
powers which were taken away from the judiciary during the emergency.by
the Forty-Third Amendment passed in December 1977 it restored to the
Supreme Court pre-emergency position with regard to power of judicial
review over the laws passed by the Parliament as well as the State
Legislatures.
As a result of the Supreme Court judgement of March 1994 in the case of
S.R.Bommai and others v. The Union of India4, also known as Assembly
dissolution case, the scope of judicial review was further widened. In recent
years the judiciary has further widened his field of operation by declaring
judicial review as a basic feature of the Constitution. Thus the Supreme
Court in India has not merely interpreted the language of
the Constitution but also pronounced on issues which involve matters of
policy.
4 1994 AIR 1918

IN Minerva Mill v. Union Of India5: In this case the validity of 42nd

amendment Act was challenged on the ground that they are destructive of
the basic structure of the Constitution. The Supreme Court by majority by 4
to 1 majority struck down clauses (4) and (5) of the article 368 inserted by
42nd Amendment, on the ground that these clauses destroyed the essential
feature of the basic structure of the constitution. It was ruled by court that a
limited amending power itself is a basic feature of the Constitution. The
historical Judgement laid down that:
The amendment made to Art.31C by the 42nd Amendment is invalid because
it damaged the essential features of the Constitution. Clauses (4) and (5)
are invalid on the ground that they violate two basic features of the
Constitution viz. limited nature of the power to amend and judicial review.
The courts cannot be deprived of their power of judicial review. The
procedure prescribed by Cl.(2) is mandatory. If the amendment is passed
without complying with the procedure it would be invalid. The Judgement of
the Supreme Court thus makes it clear that the Constitution is Supreme not
the Parliament. Parliament cannot have unlimited amending power so as to
damage or destroy the Constitution to which it owes its existence and also
derives its power.
IN L.Chandra kumar v. Union of India6: Article 323-A and 323-B, both
dealing with tribunals, were inserted by the 42nd Amendment. Clause 2(d)
of Art.323-A and Clause 3(d) of 323-B provided for exclusion of the
jurisdiction of the High Court under Art.226 and 227 and the Supreme Court
under Art.32.The Supreme Court in this case held these provisions as
unconstitutional because they deny judicial review which is basic feature of
the Constitution. It held that the power of judicial review vested in the High
court under Art.226 and right to move the Supreme Court under Art.32 is an
integral and essential feature of the Constitution.
Conclusion:
Constitution has been working for about 60 years since it is adopted, but it is
indeed very difficult to make a correct appraisal of the course and
development of Judicial Review, and its specific directions and tendencies.
Though the courts have the power of judicial review, the same cannot be
exercised in an arbitrary fashion. If the law-making power of parliament is
not unlimited, the courts` power to review the laws passed by parliament is
also not unlimited. Like other organs of the state, the judiciary derives its
powers from the constitution and the judges are as much under the
constitution as anyone else. They can interpret and invalidate laws but they
cannot themselves assume the law making function; nor can they confer
5 1980 AIR 1789
6 1995 AIR 1151

that function on any person or institution other than the federal or provincial
legislatures. Nor can the courts make constitutional what is manifestly
unconstitutional. Sovereignty is located neither in parliament nor in the
judiciary but in the constitution itself.
Despite various shortcomings of judicial review, it cannot be denied that it
has played an important role in ensuring constitutional government in the
country by keeping the centre and the states in the respective spheres. It
has also enabled the Constitution to change according to changed conditions
by imparting new meaning to the constitution. Through the exercise of this
power, the Supreme Court has protected the freedom of citizens and
protected their Fundamental Rights against encroachment by the legislative
and executive wings of the government.
There is nothing in the world which is bad or good for itself but it is its uses
which make it bad or good. This review system also has same situation. If
Supreme Court use it only for country then it is very good but if Supreme
Court uses it and keeps their own interests in mind, it is worse for country as
well as countrymen.

BIBLIOGRAPHY
BOOKS:
1. Comparative Federalism (2nd Edition), by D.D. Basu; Lexis Nexis
Butterworth (2007)

2. Amending Power under the Constitution of India, by Sunder Raman;

Eastern Law House, 1990
LEGISLATION
1. CONSTITUTION OF INDIA
WEB SOURCES
1. http://www.preservearticles.com/2011100314414/essay-on-theindian-supreme-court-unlike-the-us-supreme-court.html
2. http://archives.dawn.com/archives/67335,
3. http://vishwabhushan.blogspot.in/2011/09/judicial-review-conceptorigin-and.html.
4. http://vishwabhushan.blogspot.in/2011/09/judicial-review-conceptorigin-and.html, 21.10.13
5. http://archives.dawn.com/archives/67335,
6. http://www.preservearticles.com/2011100314414/essay-on-theindian-supreme-court-unlike-the-us-supreme-court.html,
7. Prem Arora, Political Science(Indian Government and Politics),Cosmos
Book Hive (P) LTD, P.546