CHAPTER IV

Supreme Court of India :

Constitutional Dispensation -
Organisation - Jurisdiction - Powers -
Independence of the Judiciary -
Concept & Practice - Judicial Review -
Landmark Judgements - Basic
Structure Theory
 During the British rule the Federal Court of India was the
highest court of the country. The Supreme Court was constituted in 1950
by raising the status of the then Federal Court set up under the
Government of India Act, 1935. Article 124 of the Constitution of India
provides the provision for the judiciary in India. In India, there is an
integrated judiciary for the whole country. In the U.S,A,, there are
separate judicial system for the States and the Union. But in India, the
whole country has only one judicial system which is unfederal character of
the Constitution of India. In this regard, Dr. Ambedkar claimed'that unlike
in the USA, “The Indian Federation, though a dual polity, has no dual
judiciary at all". It is said that this system was followed “to eliminate all
diversity in all remedial procedure”*.

The Indian Judicial system provided by the Constitution is

criticised for some reasons. Sir Ivor Jennings criticised for opening a
“paradise for lawyers". The Constituent Assembly was ridden by lawyers
and as a result the discussions was largely made from the legal point of
view. The Union Constitution Committee was appointed by the Constituent
Assembly and an Ad-hoc Committee was also appointed to recommend
the structure of the judiciary. The Assembly adopted the Clause 18 of the
Union Committee Report which suggested the adoption of the ad-hoc
committee with some modifications. But the draft Constitution departed
from the general scheme adopted by the Constituent Assembly "in three
particulars : (1) the report of the ad-hoc committee was widely departed
from; (2) the general scheme to omit details which could be included in a
judicature act was given up, and many details were included; and (3)
among the details incorporated were some of the amendments defeated in
the Assembly earlier"2. The members of the Constituent Assembly, being
lawyers themselves, did not try to use some particular phraseology which
has a technical meaning at present in English jurisprudence, but which
may not be interpreted in the same way by the future judiciary in India
Alladi Krishna Swami Ayyar realised this and tried to discuss this*

1. CAD, Vol. VII, p. 37

2. K.V. Rao - Parliamentary Democracy of India, p. 201-202
3. CAD, Vol. VIII, p.p. 638-39
 91

Therefore it is criticised that the Chapter on the Indian Judiciary is un-

understandable to the layman. The Constituent Assembly put emphasis
only on the legal point of view in the matter of functions and powers of the
Supreme Court. The other important matters such as the function of the
judiciary as a guardian of democracy and of the Constitution or the
expectation of the general people to get quick and cheap justice, were not
given importance by the Constituent Assembly. It is criticised that even
from the legal point of view it is defective as in the judiciary the civil law
had received greater importance than criminal. In this connection. Frank
Anthony complained that property had been given “greater sanctity than
human life’V

However, the Supreme Court has begun working within the

parameter of the Constitution and with full observance of its provisions
The Supreme Court, in India controls the entire judicial system in the
country and occupies a very significant place as the guardian of the
Constitution and custodian of the Fundamental Rights of the citizens As a
court of record it sets the ideal for all Courts in India. The great
responsibility of interpreting the Constitution rests on the Supreme Court
of India. The question of law decided by the Supreme Court is binding on
all other Courts within the territory of India.

Organisation :

The Indian Judiciary is organised pyramidically. At the apex

there is the Supreme Court and at the bottom there are numerous Nyaya
Panchayats. In between these there are various other Courts such as
Munsiffs Courts, District Courts and High Courts. At the lowest stage, the
civil and criminal justice are bifurcated. The Panchayat Court function on
two sides, civil and criminal, under various names, such as Nyaya
Panchayat, Panchayat Adnlnt. Gram Kutchory u tc . Thu Munuiff'u Court:.

4. CAD, Vol. VIII, p. 602

are the next higher civil Courts. Above the Munsiffs are the Subordinate
Judges who hear first appeals from the judgement of Munsiffs. The District
Judge hears first appeals from the decisions of Subordinate Judges and
also from the Munsiffs and himself possesses unlimited jurisdiction, both
civil and criminal.

The District Judge is the highest judicial authority in the

district. He hears appeals from the decisions of the superior Magistrates
and also tries the more serious criminal cases, known as the sessions
cases. A Subordinate Judge is sometimes vested also with the powers of
an Assistant Sessions Judge, in which case he combines in his hands
both civil and criminal powers like a District Judge5.

The High Court is the highest state level court and of great
importance as the custodian of Fundamental Rights of the citizens and
also as a court of record. The High Court has both original and Appellate
jurisdiction. It exercises appellate jurisdiction over the District and
Sessions Judge, the Presidency Magistrates and the original side of the
High Court itself. There is a High Court for each of the States, except
Manipur, Meghalaya, Tripura and Nagaland which have the High Court of
Assam at Guwahati as their common High Court; and Haryana, which has
a common High Court at Chandigarh with Punjab. The Bombay High Court
is common to Maharastra and Goa.

Besides, the Constitution provides that Parliament may by law

constitute a High Court for a Union Territory or declare any other High
Court to be a High Court for any of the Union Territories. Only the Union
Territory of Delhi had its own High Court and rest of the Union Territories
are placed under the jurisdiction of different High Courts.

The City Civil Courts and City Criminal Courts have been
established in the three Presidencies of Calcutta, Bombay and Madras

5. D.D. Basu ; Criminal Procedure Code, 1973, p.p. 33 (Prentice Hall of India, 2na Edn , 1 9 9 .'!
with a view to provide relief to the High Courts. These Courts try civil and
criminal cases which were earlier included in the original jurisdiction of the
High Courts. The original criminal jurisdiction of all High Courts, including
Calcutta, has been taken away by the Criminal Procedure Code, 1973

The Supreme Court of India :

Article 124 of the Constitution provides that there shall be a

Supreme Court of India consisting one Chief Justice and not more than
seven other Judges until the Parliament increases the number of Judges
by law. Parliament by a special Act in 1956 increased the number to ten
and by another in 1960 to thirteen. The Act 22 of 1986 increased the
number and accordingly now the Supreme Court consists of the Chief
Justice of India and not more than twenty five other Judges. According to
the Article 127, the Chief Justice of India, with the previous consent ot the
President, appoints ad-hoc Judges for such period as may, in his opinion
be necessary.

Every Judge of the Supreme Court is appointed by the

President of India. The President shall in this matter, consult other
persons besides taking advice of the Council of Ministers. The Chief
Justice of the Supreme Court is appointed by the President in consultation
with the Union Council of Ministers. From the time of the appointment of
the second Chief Justice of India, it has become a convention to appoint
the senior-most Judge of the Supreme Court as its Chief Justice. But that
convention was twice violated by the appointment of Justice A N. Ray and
Justice M.H. Beg as the Chief Justice of India superseding their seniors
on both occasions. Another convention is that one of the Judges must
belong to the Muslim community. These are conventions only which have
no constitutional basis.
 94

Qualifications :

Article 124(3) of the Constitution of India provides the

qualifications for appointment of a Judge of the Supreme Court A person
shall not be qualified for appointment as a Judge of the Supreme Court
unless he is - (i) a citizen of India, and (ii) either a distinguished Jurist or
has been a High Court Judge for at least 5 years, or has been an
Advocate of a High Court or two or more such Courts for at least ten
consecutive years.

Terms of Office and Removal :

A Judge of the Supreme Court continues in office until he

attains the age of 65. However, Article 124(2) provides that a Judge may
resign by writing under his hand addressed to the President.

A Judge of the Supreme Court may be removed from office on

grounds of proved misbehaviour and incapacity. The President may
remove a Judge by an order issued after an address has been presented
to him by the Parliament. Such an address must be supported by a
majority of not less than two-thirds of the members present and voting in
each House of Parliament. The Judge (Inquiry) Act, 1968 has provided for
the manner of investigation and proof of misbehaviour or incapacity of a
Judge.

Salary, Allowances and Other Amenities :

Article 125 of the Constitution makes provision for the salary,

allowances and other privileges of the Judges. The salaries of the Judges
are revised by the 54th Amendment to the Constitution (1987) On the
 95

basis of this Act the monthly salary of the Chief Justice has been
increased to Rs. 10,000 from Rs. 5,000 and that of the other Judges
monthly salary has been increased to Rs. 9,000 from Rs. 4,00C The
Judges are also paid other allowances, leave allowances etc. The latest
revision of the salaries of the higher judiciary has been effected in
pursuance of “The High Court and Supreme Court Judges (Conditions of
service) Amendment Act, 1998 according to which the Chief Justice of
India gets a salary of Rs. 33,000/- per month and each of the Judges of
the Supreme Court gets a salary of Rs. 30,000/- per month.

The other amenities of the Judges are that every Judge is

entitled to an official residence free of rent. They are also entitled to
pension after retirement.

A Judge of the Supreme Court after his retirement, cannot

plead or act in any court or before any authority within the territory of
India. He cannot hold any office of profit either under the Union or the
State Governments after his retirement.

Jurisdiction and Powers :

Generally, in a federal country the Judicial system is divided

into two types - the Federal Judiciary and the Judiciary of the State But
the Constitution of India provides an unified Judicial system keeping the
Supreme Court at its apex. Therefore, the Supreme Court of India
exercises enormous powers and functions which can be discussed as
follows :
1. Courts of Record : The Supreme Court is a court of record and has all
the powers of such a court including the power to punish for contempt
of itself. A court of record is a court whose acts and judicial
 proceedings are recorded for perpetual memory and which are not to
be challenged or questioned when presented before any court for
purpose of evidence. Article 142(2) provides that the Supreme Court
shall have “all and every power to make any order for the purpose of
securing the attendance of any person, the discovery of production of
any documents or the investigation or punishment of any contempt of
itself.

2. Jurisdiction : (i) Original Jurisdiction : Article 131 provides that the

Supreme Court shall, to the exclusion of any other court, have original
jurisdiction in any dispute - (1) between the Government of India and
one or more states, or (2) between the Government of India and any
State or States on the one side and one or more States on the other
(3) between two or more States. Such disputes cannot be taken to any
other Court of Law in India.

The disputes relating to the election of the President and

Vice-President are also included in the original jurisdiction of the Supreme
Court.

The Supreme Court is the protector of the Fundamental rights

of the citizens. So, the Supreme Court has the jurisdiction to entertain an
application under Article 32 for the issue of a constitutional writs ,n the
form of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and
Certiorari for the enforcement of Fundamental rights. Any disputes
regarding these rights comes within the original jurisdiction of the
Supreme Court; in this respect, the State High Courts, too, have been
given same powers.

There are certain limitations to the Supreme Court's original

jurisdiction, The original jurisdiction does not extend to a dispute arising
out of any treaty, agreement, covenant, engagement, sanad or other
similar instruments executed before the commencement of the
 97

Constitution of India. Even in respect of the Fundamental Rights, only the

legal aspects are within the Supreme Court's jurisdiction. It has nothing to
say about the administrative or political disputes.

(ii) Appellate Jurisdiction : The Supreme Court as the highest court of

appeal enjoys three kinds of appellate powers - Constitutional
Appeals, Appeals regarding civil cases, Appeals regarding criminal
cases.

(a) Constitutional Appeals : Article 132 provides that an appeal shall

lie to the Supreme Court, from any judgement, decree or final order
of a High Court; whether in a civil, criminal or other proceeding if
the High Court certifies that the case involves a substantial question
of law as to the interpretation of the Constitution. The Supreme
Court may grant special leave of appeal even if the High Court
refuses to issue such a certificate.

The Supreme Court, however, cannot grant special leave of

appeal against a verdict given by a Martial Court.

(b) Civil Appeals : An appeal shall lie to the Supreme Court if the
High Court certifies (i) that the case involves substantial question of
law, (ii) that in the opinion of the High Court the case needs to be
decided by the Supreme Court. Moreover, the party concerned may
appeal on the ground that a substantial question of law has been
wrongly decided.

At the beginning, civil cases involving values of not less than

Rs. 20,000/- were deemed to be fit to be decided by the Supreme
Court on appeal, but these provision has now been abolished
 >)8

(c) Criminal Appeals : According to Article 134(1) an appeal shall lie

in the Supreme Court from any judgement, final order or sentence in
a criminal proceeding of a High Court if the latter (a) has an appeal
reversed an order of acquital of an accused person and sentenced
him to death; or (b) has withdrawn for trial before itself any case
from a subordinate court and has in such trial convicted the
accused person and sentenced him to death, or (c) has certified
that the case is fit for appeal to the Supreme Court. The Parliament
may also confer by law, on the Supreme Court, power to entertain
and hear appeals on other cases decided by the High Courts.

Again under Article 136, the Supreme Court may grant leave
to appeal against any judgement, decree etc. passed by any court
or tribunal other than by courts or tribunals constituted under any
law relating to the Armed Forces. No appeal, however, shall lie to
the Supreme Court from the judgement, decree or final order of a
single - Judge bench of a High Court.

According to the Constitution (Article 136), the Supreme

Court can enlarge its appellate jurisdiction. The Supreme Court can
grant special leave of appeal from any other court than the tribunals
specially set up for the defence army. Again, under Article 138
Parliament can enlarge the jurisdiction of the Supreme Court m
respect of any subject included in the Union list and in respect of
any other subject with the consent of the states.

(iii) Advisory Jurisdiction : The Supreme Court’s Advisory Jurisdiction

has been discussed in Article 143 of the Constitution. Under this
Article the President may approach the Supreme Court for advice
on questions of law or fact of public importance which may have
arisen or are likely to arise. The Supreme Court may, after due
enquiry, report to the President its opinion on such mattors Thom
 are instances of the Supreme Court having given its advice to the
government on many occasions.

(iv) Miscellaneous powers and Functions : There are some other

powers and functions of the Supreme Court which may be
mentioned as follows

(1) The Supreme Court is the defender of the Constitution The

interpretation of the Constitution given by the Supreme Court <s
considered final.
(2) The Supreme Court is the guardian of the Fundamental Rights of the
citizens. Any citizen can approach it in case of infringement of any of
his Fundamental Rights by the government.
(3) The Supreme Court is a court of record as mentioned earlier It
means that the decision of the Supreme Court must be accepted by
all other courts in India. The ruling of the Supreme Court will be
upheld and accepted by all High Courts and Lower Courts as
precedents. The decision of the Supreme Court is regarded as law

(4) The Supreme Court enjoys partial power of judicial review. It can
declare void a law passed by Parliament or a state legislature if it
contravenes any provision of the Constitution or if the law is passed
in exercise of jurisdiction which Parliament or the state legislature
does not, in fact, possess.

(5) Article 137 has empowered the Supreme Court to review its own
orders or judgements given earlier. It can review its decisions if u)
some new facts or evidences come to light, (ii) a fact is found
according to its records, (iii) there are sufficient reasons for review
The Supreme Court itself observes, “There is nothing in the Indian
Constitution which prevents the Supreme Court departing from its
 H >()

previous decisions if it is convinced of its error or its baneful effects

on the general interest of the public”.
(6) The Supreme Court has also the power to make rules for regulating
its practice and procedure.
(7) Article 146 authorises the Supreme Court to appoint its officers and
servants. Accordingly, the Chief Justice of India or such other Judges
or officers of the court appointed by him, can appoint the officials and
the servants of the Supreme Court.
(8) Article 129 deals with contempt of court. The act of criticising the
Judge and the court or any judgement of the court, passing
derogatory remarks against the court and refusing to abide by the
decisions of the court constitute contempt of court.
(9) The Supreme Court enjoys the power to withdraw cases pending
before a High Court, or more than one High Court, for disposal by
itself. This can be done if (a) cases involving the same or
substantially the some question of law are pending before the
Supreme Court and one or more than one High Court, and (b) The
Supreme Court is satisfied on its own opinion or on the application
made by the Attorney-General of India or by one of the parties that
the case involves substantial question of general importance
(10) Appeals also lie to the Supreme Court under the Peoples
Representation Act.
Thus the Supreme Court of India controls the entire judicial
system in the country and occupies a very significant place as it stands at
the apex of the integrated judicial system of India.
 10

The power of a court does not depend not only upon its
functions but also upon the utility and uses of these functions The
Supreme Court of India is said to be the most powerful court in the world
as it has the largest jurisdiction. In India, the Supreme Court is the
defender of the Constitution. The interpretation of the Constitution given
by the Supreme Court is considered final. In England the courts do not
have any power to interpret the Constitution. Therefore, the Supreme
Court of India can be compared with the highest judiciary of the U S A the
Commonwealth of Australia and Canada. But the U.S. Supreme Court
enjoys limited jurisdiction in civil and criminal matters. There are two sets
of Courts in U.S.A. which are the Federal Courts and the State Courts No
appeal lies to the Supreme Court from the state High Courts in matters
concerning the exclusive jurisdiction of the states. But the Constitution of
India provides one uniform set of courts, for all purposes. In the U S A
and in Australia, the courts have no advisory jurisdiction. The Irish Court
and the Japanese Supreme Court have the power to enforce Fundamental
Rights. But they have no federal jurisdiction. But the Supreme Court of
India enjoys jurisdiction in four ways and it has the power to enforce
Fundamental Rights as well. That is why our Supreme Court is said to be
the more powerful than any other court of the world.

Comparison of the powers of the Supreme Court of India with that of

the American Supreme Court :

It is opined that the jurisdiction and powers of our Supreme

Court are in their nature and extent wider than those exercised by ihe
highest court of any other country. It is at once a federal court, a court of
appeal and a guardian of the Constitution, and the law declared by it, m
the exercise of any of its jurisdiction under the Constitution, is binding on
all other courts within the territory of India (Art. 141)
 Our Supreme Court possesses larger powers than the
American Supreme Court in several respects.

Firstly, the American Supreme Court’s appellate jurisdiction is

confined to cases arising out of the federal relationship or those relating to
the constitutional validity of laws and treaties. But our Supreme Court is
not only a federal court and a guardian of the Constitution, but also the
highest court of appeal in the land, relating to the interpretation of the
Constitution.

Secondly, our Supreme Court has an extra-ordinary power to

entertain appeal, without any limitation upon its discretion from the
decision not only of any court but also of any tribunal within the territory of
India (Article 136). No such power belongs to the American Supreme
Court.

Thirdly, while the American Supreme Court has denied to

itself any power to advice the government and confined itself only to the
determination of actual controversies between parties to a litigation ou'
Supreme Court is vested by the Constitution itself with the power to

deliver advisory opinion on any question of fact or law that may be

referred to it by the President (Article 143)6.

Thus the Supreme Court of India is in many respects the mosT

powerful institution of its kind in the world. It has more “powers than anv
other Supreme Court in any part of the world7".

6, D.D. Basu : Introduction to the Constitution of India, 18"' Edition, p. 289-290

7. K.V. Rao : Parliamentary Democracy in India, 1st Edn. P. 204
 103

Independence of the Judiciary :

England :

During the later Middle Ages, the courts developed an

independent existence in England. Even as later as the 17th century Sir
Edward Coke, as Raddiff points out, seemed to have regarded the
common law and common law courts as a sort of “tertiurr, quid,
independent alike of the crown and Parliament and well-fitted to hold the
balance between them. But the supremacy of the Parliament over the
royal prerogative was finally established in 1688, and by a side wind, as it
were the supremacy of Parliament over the courts and Judges was
achieved at the same time.

The 18,h century Parliament did not bother much about the
exercise of any control over the courts. In fact, the courts enjoyed
complete autonomy. There, however, came a change in the 19th Century
when reforms in the organisation and procedure of the courts were made
by the Judicature Acts. Though in fact, Parliament, by enacting statutes
changed the procedure and reorganised the courts, it did not mean that it
could do anything it liked with the independent functioning of the courtsB

We have to discuss as to what extent the judiciary in England

enjoys independence. Judicial independence means the functional
independence of Judges. It means a system in which they are to w o rk

without fear and favour and not under any political pressure. So far as the
English judiciary is concerned, it is, no doubt, subject to the control of

Parliament. The supremacy of Parliament has been accepted by the

English Courts. No statute made by the British Parliament is subject to

judicial review. The delegated legislation, i.e. rules and regulations made
by subordinate authorities may be declared ultra vires because of

8. Raddiff & Cross - The English Legal System, P. 397

 ’ 04

contriety to statutory provisions. The court is concerned only with the vires
of the statutory instruments.

When in 1931, the Judges’ salaries were reduced by a

measure which classed them with ordinary civil servants, it was evident
that this was virtually a step to denigrate the status of the Justices of the
English Courts. Again the question of tenure is also linked with the status
of the Judges. Before coming of the Judicature Acts (1873-75) into force
Judges could be removed by the King at his will; this put the Judges
always in fear to express their independent opinions. But after the
Judicature Acts came into force, Judges could not be removed except
upon address to the both Houses of the Parliament. It is, therefore an
obvious fact that the Parliament, in spite of its supreme power, does not
usually interfere with the functioning of the courts and use slanderous
language in respect of Judges. The position of the English Judges is
different from that of the American and French Judges9.

U.S.A. :

Article III of the Constitution provides for the judiciary in the

United States of America. As a federal country, two major court systems
prevails in America, one at the national level and another at the state
level. In U.S.A. the National Government and the State Government have
its own Constitution and Supreme Courts. Cases from the State Supreme
Court comes to the State Federal Supreme Court very rarely as the path
to the Federal Supreme Court is long, expensive, arduous and difficult
Only the cases having substantial federal question can come to the
Federal Supreme Court.

There are three major Constitutional Courts in U.S.A. namely

- Supreme Courts of the United States, having original as well as

9. K.P. Chakravarty : Jurisprudence and Legal Theory, p. 385-386

appellate jurisdiction, United States (Circuit) Courts of appeals, United
States District Courts having only original jurisdiction. The United States
District Courts are known as the “work horses of the federal judiciary

The Judges in the U.S.A. are constitutional functionaries and

the Judges both of the Supreme Court and inferior courts shall hold their
offices during their good behaviour and shall receive a compensation at
stated times, for their service, which shall not be diminished during their
continuance in office. The Judges can not be removed except by
impeachment. Moreover, the independence of the Judges is secured by
rigid separation of powers. Except the Judges two most important officers
of the district level are United States Marshall and United States Attorney

The independence of judicial decision of the U S. Supreme

Court can be felt in the judgements given by the Judges comprising C.J
Burger in “The Watergate Affair" in July 1974 In the case of United States
Petitioner Vs. Richard Nixon, President of the United States, 417 U S 683
(1974), Because of the majority (8:0) decision, the court ruled that the
man was above the law, that the President was duty bound to comply with
the valid judicial order to turn over evidence desired in a criminal trial, and
there was no “absolute unqualified presidential privilege of immunity from

judicial process under all circumstances". Therefore 15 days b ef o re

Nixon’s resignation, C.J. Burger told the President, the nation and the
world : "We therefore reaffirm that it is emphatically the province and duty
of this court what the law is".

Thus, the courage of conviction, independence of spirit and

boldness of views place the Judges of the Supreme Court at a height of

eminence. Judges like John Marshall, Oliver Windell Holmes, Benjamin N

Curdozo, Earl Warren, Felix Frankfurter and Burger will remain as the
eminent Judges for their unique and independent justice delivery process
 ’ 06

India :

A question may be raised as to what extent the judiciary in

India enjoys independence. Judicial independence can be interpreted in
three different ways. In the first place it means the judiciary must be free
from encroachment from other organs in its sphere. The Constitution ot
India makes the judiciary absolutely independent except in certain matters
such as the powers of remission etc. given to the Executive Head of our

country. In the second place, the independence means the freedom of the
judgement and decrees from legislative interference. In third place it
means a system in which they are to work without fear and favour of the
two other organs and not under any political pressure.

In a democratic country like India, the independence of the

judiciary is necessary. Except the cases between citizen and citizen
citizens and government, the judiciary in India has to decide the cases
between government and government and in the enforcement of
Fundamental Rights. Therefore, in India, the judiciary should be
independent of the other organs of the government.

In India, some measures have been taken to ensure the

independence of the Judges of the Supreme Court. These can be
mentioned as follows.

1. Though the appointing authority is the President which in practice

means the Council of Ministers, the appointment of Judges of the
Supreme Court is not purely political. The Constitution requires that in the
appointment of a Judge the Chief Justice shall always be consulted
(Articles 124 and 217).

2. Secondly, a Judge of the Supreme Court cannot be removed from

his office except on a joint address by both Houses of Parliament on
 107

ground of proved misbehaviour or incapacity, A Judge of the Supreme

Court can be removed by the President upon a resolution to that effect
passed by majority of the total membership and a majority of not less than
two-thirds of the members present and voting in each House.

There is a similarity between the removal procedure of the Judges

of the Supreme Court of India with the Judges of the superior courts of
England. Since the Act of Settlement, 1701, to the effect that though
Judges of the superior courts are appointed by the Crown, they do not
hold office during his pleasure, but hold their office “on good behaviour
and the Crown may remove them only upon a joint address from both
Houses of Parliament.

3. Article 121 of the Constitution lays down that no discussion shall

take place in Parliament with respect to the conduct of any Judge of the
Supreme Court or of a High Court in the discharge of his duties except
upon a motion for presenting an address to the President praying for the
removal of the Judge.

4. Article 146(3) of the Constitution of India provides that the

administrative expenses of the Supreme Court, the salaries and
allowances etc. of the Judges as well as of the staff of the Supreme Court
shall be charged upon the Consolidated Fund of India and are not to be
submitted to the vote of Parliament.

5. Article 125(2) provides that the salary, allowances, leave and

pension of the Judges may be determined by law made by Parliament
these shall not be varied to the disadvantage of a Judge during his term of
office. In other words, he will not be affected adversely by any changes
made by law since his appointment. But only in time of financial
emergencies the President can cut down the salary of the Judges [Article
360(4)(b)].
 108

6. Article 124(7) of the Constitution ensures the independence of the

Judges by laying down that after retirement a Judge of the Supreme Court
shall not plead or act in any Court or before any authority within the Indian
territory.

7. Lastly, the Judge must be free from all criticism in the Press and the
Parliament (Article 129).

Though the measures mentioned above are taken by the

Constitution, there are some provisions which can help the Judges to be
corrupt. The main provision of this nature lie in the possibility of promotion
as Chief Justice, the possibility of promotion from the High Court to the
Supreme Court and the possibilities of executive favours after retirement
The post of the Chief Justice both at the centre and at the states carries
honour as well as carries a higher salary. The promotion from this post
depends upon the favours of the Executive. It is a big loophole in the
matter of promotion of the Chief Justice. Before 1973, the appointment of
the Chief Justice had come to be automatic. The post was going by
seniority on the retirement of the incumbent. This convention was broken in
April 1973 when A.N. Ray was appointed Chief Justice of India
superseding three of his senior colleagues. This supersession led tc the
resignation of three Judges and various criticism levelled against it i he
Prime Minister defended the action but in vain. The principle of seniority
was again set aside in the case of Justice H.R. Khanna who had given a
bold dissenting judgement in the famous Misa caseio. Therefore to avoid
those difficulties some strict principles should be adopted in the matter of
promotion of the Chief Justice. The principle may be either to make his pay
equal to that of others, or make the office go by rotation, or to make it go
strictly according to seniority. Another defect in the matter of appointment
of Judges is the provision of a temporary Chief Justice under Article 126.
an acting Chief Justice can be appointed whenever there is a vacancy
which may be temporary or permanent. An acting Chief justice cannot be

10. Kuldip N a y a r : Supersession of J u d g e s , p. 60

independent of the Executive till he is confirmed.

Another defect which contribute to increase corruption in th e

subject of appointment to the Supreme Court from High Courts is th e

provision of appointment which gives a higher salary and a tenure fo r

another five years along with other emoluments and honour attached to it

This is a temptation which may corrupt the Judges to influence th e

executive.

The independence of the Judges of the Supreme C o u r t h a s

been ensured by laying down that after retirement a Judge of the S u p r e m e

Court shall not plead or act in any Court or before any authority w ith in th e

territory. But our Constitution does not prevent the Judges from a s p ir in g

for any post which is within the patronage of the Executive, both d u r in g

the tenure of office and after retirement - as Ministers, G o v e r n o r s ,

Ambassador or as Chairman of special Tribunals after retirement a n d

other ad-hoc posts during office. This provision may make the J u d g e s

politically biased.

The success of the Constitution depends upon the im p a r t ia lity

and detachment of the judiciary. For a democratic country like India a n

appropriate atmosphere should has been created so that the ju d ic ia r y c a n

work impartially. An impartial, unbiased and independent judiciary w ill b e

in a position to defend the Constitution and protect the liberty o f th e

people. Judges should not be given any appointment of political n a tu r e

after their retirement.

Judicial Review :
Landmark Judgements - Basic Structure Theory :

The doctrine of Judicial Review takes its origin fr o m th e

theory of separation of powers. The power of judicial review is im p lic it in

 110

the judiciary. This was developed in America by Chief Justice Marshall

and thereafter by other Judges of the U.S. Supreme Court. The principle
of judicial review is followed in Canada, Australia, India and other
countries having written Constitutions.

Judicial review is regarded as the defensive armour to protect

the rights and liberties of the people against the legislative and executive
aberrations.

In India, the power of judicial review has been conferred on

the High Courts and the Supreme Court under Articles 226 and 32
respectively. A brief discussion on the power of judicial review in England
and America is as follows,

England :

The idea of judicial review for the first time was raised m
England. But it was rejected subsequently. This idea arose out of the
famous Dr. Bonham's case, in 1910 in which the King pursuant to an Act
of Parliament which had granted to the members of the London College of
Physicians the exclusive right to issue licences to practice medicines in
the city. Dr. Bonham was charged as illegal for he was not a m em b er of
that college. Sir Edward Coke, the then Lord Chief Justice, declared the
charter void as violative of the common law. This was subsequently
rejected by the English Court, even before the Glorious Revolution of
1688. This revolution established the supremacy of Parliament, It meant
that a Parliamentary enactment is absolutely unlimited in scope and
authority. A statute enacted by Parliament is of binding force for the whole
realm as soon as it has received the royal assent.

Walter Bagehot says - there is nothing the British Parliament

cannot do except transforming a man into a woman and a woman into a
man. The English Courts are subordinate to Parliament; but their
independent functioning within the framework of law is. seldom disturbed
by Parliament. They are not only to apply and interpret the law passed by
Parliament and they are bound by the law enacted by Parliament.

Practically, the English Courts have no power of judicial

review. The Courts can look into the administrative authorities within their
legal power. Sir Ivor Jennings said, "an order in the nature of a
prerogative writ, an injunction or a declaration of illegality may be issued
to prevent an illegal act or to compel the performance of the legal duty
For this, no statutory power is necessary. The Courts have found such a
power, have 'found' it within the elastic boundaries of the common law if it
is intended to prevent such judicial interference with administration, there
must be an express statutory prohibition, as there is in certain
circumstances in the modern law of housing and of town and country
planning (for example, Housing Act, 1936 and Town and Country Planning
Act, 1947) n".

United States :

The idea of judicial review for the first time was raised in
England. The founding fathers of the United States Constitution felt it
necessary to keep the provision of judicial review. Its textual basis was the
supremacy clause and Article III, Section 2 of the Constitution, which
states that the judicial power shall extend to all cases in law and equity
arising under the Constitution. Chief Justice Marshall established the
doctrine of judicial review through his famous decision in Marbury Vs
Madison in 1803. John Marshal's Court’s another famous verdict lies in the
case of Me Culloh Vs. Maryland (1819),2.

11. Jennings : The Law and the C o n stitu tio n , 5'" End., 197 9, p. 251
12. D etails w ere discussed in C h ap ter 11, p. 1 7-1 8
 112

India :

Though nowhere in the Constitution of India is mentioned the

phrase 'Judicial Review', yet the Supreme Court of India has the power of
judicial review.

The Supreme Court under Article 32 and the High Courts

under Article 226 are conferred with the power of judicial review of 1)
Legislation (2) Quasi-judicial Proceeding and (3) Administrative Action

Separation of powers has not been recognised under the

Constitution of India in its absolute rigidity. But in India, legislative,
executive and judiciary have to function within their own spheres
demarcated under the Constitution. The functioning of democracy depends
upon the strength and independence of each of its organs. The court is the
interpreter of limit of authority of different organs of the state The
interpretation of the Constitution as a legal instrument and its obligation is
the function of the courts.

Judicial review is a powerful weapon to restrain the

unconstitutional exercise of power by the legislature and the executive
The expanding horizon of judicial review has taken in its fold the concept
of social and economic justice. While exercising the power of judicial
review, the only check of the judiciary is the self-imposed discipline of
judicial restraint^.

The right given to the citizen to move.the Supreme Court by a

petition under Article 32 of the Constitution and claim an appropriate writ
against the unconstitutional infringement of his Fundamental Rights itself
is a Fundamental Right14. The judicial review of the Supreme Court
envisages the judicial review of the act of Parliament of State legislatures
in passing the legislation. Moreover, it encircles the review of act of the

13. Aseef Hameed Vs. State of J. & AIR 1989, SC 1899

14. Daryao Vs. State of U.P. AIR 1961 SC 1457 (1962)1 SCR 574
 113

governmental authorities performing both quasi-judicial and administrative

powers. Article 13 provides for the judicial review of all legislations in
India.

The most significant achievement in post-Constitution India is

the exercise of the power of judicial review by the superior courts The
judicial review of the Supreme Court is a basic structure of the
Constitution. Therefore, even though Constitution can be amended by the
amending power under Article 368 of the Constitution, this power of
judicial review being part of basic structure of the Constitution cannot be
curtailed by amendment^.

The Constitution of India contains express provision for

judicial review of the legislation so as to conform it with the Constitution
unlike in U.S.A. where the Supreme Court has assumed extensive powers
of reviewing legislative acts under cover of widely interpreted due
process" clause in Fifth and Fourteenth Amendment to the American
Constitution. The Supreme Court (through Patanjali Sastri) agrees that
"The Constitution of India contains express provision of judicial review'
and that specially with reference to Fundamental Rights “the Supreme
Court has been assigned the role of a sentinel on the quivive" (vide The
State of Madras Vs. V. Row, AIR 1952 S.C. 196). The powers of judicial
review provided in the Constitution of India is limited in nature. Judiciary in
India is not as powerful as it is in the U.S. for the reason that the scope of
judicial review in India is confined to the examination of the Constitutional
validity of an impungned law or executive action on two Courts M)
whether it falls within the competence of the authority that has framed it
(2) whether it is considered with Part III of the Constitution of India dealing
with Fundamental Rights.

15. Keshavananda Bharati Vs. State of Kerela AIR 1973 SC 1461, Indira Nehru Gandhi Vs Ra|
Narain AIR 1975 SC 2299
Quasi-Judicial Function and Judicial Review :

A quasi-judicial function stands between a judicial and an

administrative function. A purely administrative act does not decide rights
of private parties, but a quasi-judicial act determines the private rights with
a binding force. An administrative act may be either statutory or non-
statutory. But a quasi-judicial act must have statutory authority to
discharge the function in question. In a quasi-judicial proceeding a right to
reasons is an indispensable part of the system of judicial review.

A statutory tribunal or authority created by the statute with

power to decide a matter or to make an enquiry is subject to judicial
review.

Administrative Action and Judicial Review :

Lord Diplock described three grounds upon which an

administrative action is subject to judicial review and they are illegality,
irrationality and procedural impropriety with proportionality This
classification has generally been adopted in practice not only in U K but
also in India. In State of AP Vs. Me Dowell & Co. the Supreme Court has
observed - "even in the case of administrative action, the scope of judicial
review is limited to three ground, namely - (1) unreasonableness, which
can more appropriately be called irrationality; (2) illegality and 3)
procedural impropriety"i6.

Judicial review is directed not against the decision but is

confined to examination of decision making process. When the issues
raised in the judicial review is whether a decision is vitiated by taking into
account irrelevant or neglecting to take into account of relevant factors or
is so manifestly unreasonable that no reasonable authority, entrusted with

16. State of A.P. Vs. Me Dowell 8 Co., AIR 1996, SC 1627, (1996)3 SCC 709
the power in question could reasonably have made the decision, the
judicial review of the decision making process includes examination, as a
matter of law, of the relevance of the factorsi7.

Judicial Review and the Pre-Constitutional Law and the Post-

Constitutional law :

Under the provision of judicial review the Supreme Court can

test all pre-constitutional and post constitutional or future laws and declare
them unconstitutional in case they contravene any of the provisions of part
III of the Constitution.

According to Article 13(1) all pre-constitutional laws which

were in force immediately before the commencement of the Constitution
shall be void to the extent to which they are inconsistent with Fundamental
Rights from the date of the commencement of the Constitution.

Article 13(1) is perspective in nature. All pre-constitutional

laws inconsistent with Fundamental Rights will become void only after the
commencement of the Constitution. Such inconsistent law is not wiped out
so far as the past acts are concerned.

A declaration of invalidity by the court is necessary to make a

law void. If only a part of a statue is unconstitutional, then whole of the
statute is not declared unconstitutional. This is clear from the Supreme
Court's doctrine of severability or separability. This doctrine states that if
an offending provision can be separated from that which is constitutional
then only that part which is offending is to be declared as void and not the
entire statute. Article 13 of the Constitution uses the words "to the extent
of such inconsistency be void" which means that when some provisions of
the law is held to be unconstitutional then only the repugnant provisions of

17. State of UP. Vs. Maharaja Dharmendra Prasad Singh, AIR 1989, SC 997
the law in question shall be treated by courts as void and not the whole
statute^.

Clause (2) of Article 13 prohibits the state to make any law

which takes away or abridges rights conferred by part III of the
Constitution. Post-constitutional laws inconsistent with Fundamental
Rights are void from their very inception. Thus the voidness of the pre-
constitutional law is not from its inception but from the date of the
commencement of the Constitution. But, the voidness of a post­
constitutional law is from its very inception and such a law can not exist
from any purpose in relation to the citizens of India.

Amendments - Relevant cases and Landmark Judgements :

If the state makes law which takes away or abridges rights

conferred by part III of the Constitution that law will become ultra vires
and void to the extent of contravention. This law cannot be revived by
removal of the constitutional prohibition by subsequent amendment of the
Constitution.

"Even though the power of formal amendment has been

conferred upon Parliament by Article 368 of the Constitution and the scope
of resorting to the judiciary to introduce changes has been reduced by
making the process of amendment easier than in the U.S.A., the working
of our Constitution has opened the avenue for judicial review in India m
nearly the same was as in the U.S.A"i9 .

"According to our Constitution Parliament is supreme in

enacting laws and amending the Constitution, but the Supreme Court is
supreme in deciding whether the laws enacted and the amendments made
by Parliament are within the ambit of the Constitution"™. Thus the

18. Moto General Traders Vs. A.P. (1984)1 SCC 222

19. D.D. Basu - Introduction to the Constitution of India, p. 406
20. S.L. Sikrl - Indian government and Politics, p. 206
Constitution distinctly shows the limitations of the Parliament a n d th e

Judiciary. Yet, the conflict between the Supreme Court and the P a r lia m e n t

began soon after the commencement of the Constitution in 1 9 5 0 T h e

reason behind this conflict is the claim to supremacy of judicial r e v ie w V s

Parliamentary sovereignty in interpreting and defining the Constitution

Before 1967, the Supreme Court was holding that no p a r t o f

the Constitution was unamendable under Article 368 and th a t

Fundamental Rights are also amendable. But in 1967, the Supreme C o u r t

gave its judgement in the Goloknath case that, Fundamental Rights c a n n o t

be amended by Parliament following the method prescribed u n d e r A r tic le

368. The Government responded through the 24,h Amendment in 1 9 7 1 to

the Constitution by adding clause 4 to Article 13 and p r o v id e d th a t

Fundamental Rights could be amended by the procedure laid d o w n in

Article 368. So, the Parliament got the power to amend any part o f th e

Constitution. The 24th Constitution Amendment Act was passed to n u llify

the decision of the Supreme Court in the Goloknath case which d e c la r e d

the Fundamental Rights unamendable.

The 24th and 25th Amendment were challenged in the

Keshvananda Bharati's case. In this case, which is also called
"Fundamental Rights' case", the Supreme Court held that
(1) Fundamental Rights can be amended.
(2) A part of the 25th Amendment Act was struck down. It means th a t

constitutional amendments were subject to judicial review.

(3) The Constitution has certain basic features which cannot be amended

The Parliament was not satisfied with the judgement in

Keshvananda Bharati's case. So, when the 42nd Amendment A c t w a s

passed in 1976, unlimited power was given to the Parliament to amend th e

Constitution. The Supreme Court was denied the power to d e c la r e

Constitutional Amendment Act null and void.

 But, the 42nd Amendment Act was challenged in the S u pre m e
Court in Minerva Mills case in 1980. Through this Act the Supreme Court
has got the power of judicial review over Amendment Acts also.

Relevant cases and Landmark Judgements of the Amendments and

the Basic Structure Theory :

The question of basic structure of the Constitution has not

been raised suddenly. It is the result of a gradual process of adju d ica tio n
and interpretation of the Constitution and the laws over the decades The
more important relevant cases of the amendment of the Constitution are
as follows.

(1) Shankari Prasad Vs. Union of India (AIR, 1951 SC 458)

While the Patna High Court in Kameswar Singh Vs State of

Bihar2i declared the Zamindari Abolition Act invalid, some other High
Courts delivered judgements which were quite the opposite. Pandit Nehru
was shocked to find that not a few of them had struck down land reform
laws because they did not provide for adequate compensation The
Supreme Court held the view that it was unconstitutional to diffe re n tia te
between the rich and the poor in determining the compensation for
property acquired by the state. This led to the First Amendment Act 1951

The First "Amendment Act 1951 came to be challenged in

Shankari Prasad's case. It was in this case that the first attack on
Parliament’s power to amend the Constitution was made. The S P
Singhdeo Vs. Union of lndia22, the Supreme Court unanimously held that
an amendment of the Constitution was not 'law' within Article 13 of the
Constitution.

2 1 , K a m e s w a r S in gh V s , S ta te of B ih a r, A IR 1 9 5 1 , p. 91
2 2 . S h a n k a ri P ra s a d S in g h d e o Vs. U nion o f In d ia , A IR 1 9 5 1 , S C 4 5 8
 1 ) ' ■>

The First Amendment Act inserted Articles 31 A and 31 B in the

Constitution. Article 31A provided that no law, affecting the rights of any
proprietor or intermediate holder in any ‘estate’ shall be deemed to be void

on the ground that it is inconsistent with or takes away or abridges the

rights enshrined in Article 14, 19 and 31. The object of this Article was to
facilitate agrarian reforms. Article 31B stated that any enactment, which is
placed in the Ninth Schedule, will not be liable to be challenged on the
ground that it abridges or takes away any of the Fundamental Rights

In Shankari Prasad case, the Constitution First Amendment

Act was questioned. The issue was whether Fundamental Right (Right to
Property in this case) could be curtailed or abridged by a constitutional
amendment in view of the prohibition laid down in Article 13 clause 2
which says, "The state shall not make any law which takes away or
abridges the rights conferred by this part (part III) and any law made m
contravention of this clause shall, to the extent of the contravention be
void". In sum, the question relates to the interpretation of the term 'law as
per Article 13(2) and the scope of the Article 368. The Supreme Court held
further that Article 13(2) must be read subject to Article 368 Thus
Parliament had the power to amend Fundamental Rights.

Though at first, Shankari Prasad's case raised no

controversies, after Golok Nath case it seemed to have become
controversial. The case was decided on 5th Oct, 1951. The participating
Judges in this case were Kania C.J., P. Shastri, B.K. Mukherje, S.R Das
and N.C. Aiyar and the non-participating Judges were Mahajan, V Bose
and Fazl AN.

Justice Shastri was aware of the political problems of that

time that faced the court. He knows that amendment was the work of the
political party in power. Moreover, he recognised the conflict between the
government and the court. Justice Shastri in support of the constitutional
position says, "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 constitutional power. Dicey defines constitutional law as
including all directly or indirectly affect the distribution of exercise of the
sovereign power of the state". It is thus mainly concerned with the creation
of the three great organs of the state, the executive, the legislature and
the judiciary, the distribution of governmental power among them and the
definition of their mutual relation. No doubt our Constitution makers
following the American model have incorporated certain Fundamental
Rights in part III and made them immune from interference by laws m ade
by the state. We find it, however difficult, in the absence of a ciear
indication to the contrary to suppose that they also intended to make those
rights immune from constitutional amendment. We are inclined to think
that they must have had in mind what is of more frequent occurrence, that
is, invasion of the rights of the subjects by the legislative and executive
organs of the state by means of laws and rules in exercise of their
legislative power and not the abridgement or nullification of such rights by
alterations of the Constitution itself in exercise of the sovereign
constitutional power. That power, though it has been entrusted to
Parliament, has been so hedged about with restrictions that the exercise
must be difficult and rare. On the other hand, the terms of Article 368 are
perfectly general and empower Parliament to amend the Constitution
without any exception whatever. Had it been intended to save the
Fundamental Rights from the operation of that provision, it would have
been perfectly easy to make that intention clear by adding a proviso to
that effect. In short, we have here two articles each of which is widely
phrased and conflicts with the other. Harmonious construction requires
that one should be read as controlled and qualified by the other, having
regard to the consideration averred to above. We are of the opinion that m
the context of Article 13 "law must be taken to mean rules or regulations
made in the exercise of ordinary legislative power and not amendment: t<>
the Constitution made in exercise of constituent power, with the result that
Article 13(2) does not affect amendments made under Article 368"2s.

Thus justice Shastri's judgment held that the term "law m

Article 13(2) does not include constitutional law made under Article 368
Thus the Parliament had the power to amend Fundamental Rights But
justice Shastri pointed out a possible conflict between the amending
article and Fundamental Rights. The weak point of his judgement was that
he assumed the articles dealing with Fundamental Rights and those
dealing with amending power were in conflict and had to be harmonised It
was held as a technical error when justice Subba Rao interprets the case
in Golok Nath. Justice Subba Rao interpreted that instead of saying it as a
simple matter of parliamentary supremacy, Justice Shastri said it is
possible that the doctrine of parliamentary supremacy was itself modified
Except this technical error Justice Shastri's judgement plays a significant
role in interpreting the meaning of law made under Article 368.

(2) Sajjan Singh's case (1965)

In Sajjan Singh case2 4 the Supreme Court declared by a

majority of 3 to 5 that the decision taken in 1951 in Shankari Prasad case
was correct. The Seventeenth Amendment Act, (1964) protected a large
number of agrarian reform statutes from the equality, police power and
eminent domain provision of the chapter on Fundamental Rights This
amendment was challenged in 1965 in Sajjan Singh Vs State of

Rajasthan. The basis of the challenges was limited to matters of

procedure. The litigants argued that any change in the Fundamental Right
chapter automatically reduced or increased the power of the High C o ur t s .

The Judges in this case were Gajendra Gadkar C.J., Warchoo and
Hidayatulla, Raghubar Dayal and Mudholkar. In this case Gajendragadkar
C.J. seems to transcend the traditional view that judicial review is primarily
jurisdictional and takes the view that the Constitution is a social docume nt

23. AIR (1951) SC 458 at Pr 13 p. 463

24. AIR 1965, SC 845
 1? ?

and Judges must make an effort to link their interpretation of it to sooio

economic problems facing the nation. After this, the socio-economic
interpretation view gets its importance in the political history of India
Gajendragadkar J. reiterate Justice Shastri's argument. Moreovet he
relied on the doctrine of "the Pith and Substance" which was the product
of the Privy Council in dealing with the division of power between the
states and the centre in the Constitution of Canada and Australia He
assumed that since the doctrine is applicable to legislative lists, it is also
applicable when interpreting any other part of the Constitution Chief
Justice Gajendragadkar did not argue that the two Articles relating to
Fundamental Rights and the amending power were contradictory and in
need of harmonious construction. He took his argument a step forward
and cleared doubts by saying that since the amending article did not
exclude the power to amend Fundamental Rights, there was nothing to
stop Parliament from amending the amending article itself.

The majority opinion in this case was that the power of

amendment should be unlimited and added that this was in, accordance
with a socio-economic interpretation of the Constitution.

Thus in Sajjan Singh case (1965) the Supreme Court declared

by a majority of 3 to 5 that the decision taken in 1951 in Shankari Prasad
case was correct.

(3) Goloknath Case (1967)

This case was heard by 11 Judges. The majority consisted of

6 Judges and they were Chief Justice Subba Rao, Judges Hidayatullah,
Sikri, Shelat, Vaidialingam and Shah and the minority consisted of five
Judges and they were Judges Wanchoo, Bachawat, Ramaswami Mitter
and Bhargava.
 i/;s

In Goloknath Vs State of Punjab case25 the Supreme Court

was once again seized with the issue whether Parliament had the plenary
powers to amend Fundamental Rights. The petitioner in this case
challenged the constitutional validity of certain land reform laws of Punjab
But these laws had been expressly made immune from judicial attack on
the ground of violation of Fundamental Rights by the Constitution 17'"
Amendment Act, 1964, The issue before the Court was whether the
Parliament Acts amending the Constitution and curtailing the rights of the
citizens were themselves valid. The Court was asked to accept a
challenge to the Seventeenth Amendment. The apex Court held by a
majority of 6 to 5 -

1. Article 368 merely gives the procedure of amendment but does not
empower Parliament to amend the Constitution. The completion of
various steps in the procedure can not be said to culminate in the
power to amend, for, if it were so, the makers of the Constitution
would have stated that in the articles.

2. Article 13(2) gives an inconclusive definition of 'Law1, it includes

constitutional law. Hence, an amendment which contravences the
provision or Article 13(2) is void.

3. The Court applied the doctrine of prospective over ruling to uphold

the several constitutional amendments to Fundamental Rights
already made. Thus, the Court give effect to the judgement
prospectively.

Chief Justice Subba Rao was concerned with two problems

when he dealt with these cases. He thought that the Court’s power of
review should not be taken away. He believed in the importance of judicial
review. "He therefore insisted that the judiciary should have extensive
powers of review even in matters of preventive detention even in times of

25. AIR (1967), SC 1643

 I

emergency. It is perhaps for this reason that he made modifications in the

doctrine of eclipse, thus preventing the ouster of review in such cases
where the government sought to revive void statutes by constitutional
amendment. The Indian Constitution contains two articles which guarantee
extensive power of interference with the right to property and personal
freedom. It had been taken as settled that these powers were unlimited as
long as the government could produce a validity enacted statute. Subba
Rao, J. played with the constitutional texts and put forward the view that
both powers should be so interpreted that they be considered valid only if
they were reasonable restrictions in the public interest. These Subba Rao
doctrines (They should be associated with his name) have become the
accepted interpretation of the C o u rts. Thus it is the fight for judicial
review of Subba Rao J. Though his interpretation of the rights were not
rigid to make ineffective the government action, he gave prime importance
to the right. In the Goloknath case he applied the doctrine of prospective
overruling which resulted that the laws were not declared invalid By
applying that doctrine in some cases Justice Subba Rao restrained himself
from actually striking down the statutes on the ground that they could not
be so declared as much work had already been done by the government in
pursuance of their enforcement.

In giving the judgement of this case, the learned Judge forgot

the basic fact that such an interpretation of the Fundamental Rights would
hamper the socioeconomic progress of the poor and the backward people
of the country. Moreover, the judgement of Goloknath case has opened
the avenue of confrontation between the legislative and judicial
department.

20, R. Dhavan Supreme Court and Parliamentary Sovereignly, p, A7

 1.?5

Important Constitutional Amendments after Goloknath case :

After the Goloknath case, the Parliament tries to regain its

lost power by the making of necessary amendments of the Constitution of
India. In this connection, Nath Pai move his unofficial bill in the Lok Sabha
on April 7, 1967 to undo the effect of the verdict of Goloknath case
Among other things, the bill said, "This supremacy implies the right and
the authority of the Parliament to amend even the Fundamental Rights
Just as Parliament can extend these rights, it can in special circumstances
also modify them". The government of that time supported this private
member's bill. But it lapsed as it remained there till Lok Sabha was
dissolved in 1970.

The victory of the Congress party in 1971, paved the way for
the Parliament for the adoption of necessary amendments in the
Constitution. The 24th Constitution Amendment Act was passed to nullify
the decision of the Supreme Court in the Goloknath case which had
declared the Fundamental Rights unamendable. The 24th Amendment Act
provided that the provision of Article 13 will not apply to constitutional
amendments. It meant that Fundamental Rights could be amended for the
implementation of the Directive Principles of State Policy. In other words
the 24lh Constitutional Amendment Act made the Fundamental Rights
amendable again. This amendment made Articles 14, 19 and 31
subordinate to clauses (b) and (c) of Article 39 which deals with the
Directive Principles of State Policy. Moreover, it also curtailed the power
of judicial review. In other words, by the 24th Amendment, Parliament was
authorised to amend by addition variation or repeal any provision of the
Constitution. By the 25th, 26th, 29,h and 34th Amendments, the Government
further curtailed the Fundamental Rights specially those concerning
property. Article 31C was added to give primary to the Directive Principles
as against Fundamental Rights. The 24th and 25th Amendments were
challenged in the Keshvanand Bharati's case.
 1 2 6

Keshvananda Bharati's case (1973) :

This is known as the "Fundamental Rights" case. The case

was heard by 13 Judges and their judgement were delivered on 24th April.
1973. The conclusions drawn from the judgement of Chief Justice S.M.
Sikri which is very significant in this case are27 :

1. The expression "amendment" of the Constitution does not enable the

Parliament to abrogate or take away Fundamental Rights or to
completely change the fundamental features of the Constitution so as
to destroy its identity. Within these limits of the basic framework of the
Constitution the Parliament can amend any Article.

2. The 24th Amendment Act is valid.

3. Article 368 does not enable the Parliament in its constituent capacity
to delegate its function of amending the Constitution to another
legislature or to itself in its ordinary legislative capacity.

4. Section 2 of the 25th Constitution Amendment Act replacing the word

"compensation" by the work amount is valid.

5. Clause C added to Article 31 is void as it delegates ppwer to the

legislature in regard to the amendment of the Constitution.

6. The 29th Constitution Amendment Act is ineffective to protect the

impugned Acts if they abrogate or take away Fundamental Rights

The judgement of the Supreme Court in this leading case laid

down the important points which the apex Court held by majority of 7 to 6
nre -
2 7 . H is H o lin e s s K e s h v a n a n d a B h a r a ti V s . T h e S ta te o f K e r e ia , A IR 1 9 7 3 S C 1 4 6 1
(i) Parliaments' amending power is limited while Parliament is entitled
to abridge any Fundamental Rights or amend any. provisions of the
Constitution, the amending power does not extend to damaging or
destroying any of the essential features of the Constitution
Fundamental Rights are among the essential features of the
Constitution. Therefore, while they may be abridged, the
abridgement cannot extend to the point of damage or destruction of
their core.

(ii) Article 31C is void since it takes away invaluable Fundamental

Rights, even in those unconnected with property.

The interpretation accepted by the Judges as a compromise

formula in this case are

(a) The whole Constitution cannot be repeated. This interpretation is

based on the meaning of the word 'amend' and it is argued that the
word 'amend' cannot be extended to include complete repeal

(b) The Constitution has certain essential features which are stated in
the Constituted Assembly, and these are immutable and cannot be
changed. This means that the broad framework of parliamentary
democracy and the federal structure cannot be altered even by the
use of the plenary power of amendment.

(c) Each Article in the Constitution (and specially those in the chapter on
Fundamental Rights) have an essential element and a core meaning
which cannot be eroded in anyway. Thus the Fundamental Rights to
property cannot be eroded and any amendment of the Article
protecting the right to property will be tested to ensure that the basic,
right to property and compensation is not taken away.
 1P8

The judgement given by Justice H.R. Khanna in this case is

significant. He held2e "A question has been posed during arguments as to
whether the power of amendment under the above article includes the
power to completely abrogate the Constitution and replace it with an
entirely new Constitution. The answer to the above question, in my
opinion, should be negative. I am further of the opinion, that a m e n d m e n t
of the Constitution necessarily contemplates that the Constitution has not
to be abrogated but only changes have to be made in it. The word
'amendment' postulates that the old Constitution survives without loss of
its identity despite the change and continues even though it has been
subjected to alterations. As a result of the amendment, the old
Constitution cannot be destroyed and above done away with, it is retained
though in an amended form. What then is meant by the retention of the old
Constitution? It means the retention of the basic structure or framework of
the old Constitution. A mere retention of some provisions of the old
Constitution even though the basic structure or framework of the
Constitution has been destroyed would not amount to the retention of the
old Constitution. Although it is permissible under the power of amendment
to effect changes, however important, and to adopt the system to the
requirements of changing conditions, it is not permissible to touch the
foundation or to alter the institutional pattern. The words "amendment of
the Constitution" with all their wide sweep and amplitude cannot have the
effect of destroying or abrogating the basic structure of framework of the
Constitution. It would not be competent under the grab of amendment for
instance, to change the democratic government into dictatorship or
hereditary monarchy nor would it be permissible to abolish the Lok Sabha
and the Rajya Sabha. The secular character of the state according to
which the state shall not discriminate against any citizen on the ground of
religion only cannot likewise be done away with. Provision regarding the
amendment of the Constitution does not furnish a pretence for subverting
the structure of the Constitution nor can Article 368 so construed as to
embody the death of the Constitution or provide sanction for what can

28. Cited by Dr. R ajeev D havan in his “The S uprem e C ourt of India and Parliam entary
S o vereign ty, p. 143
perhaps be called its lawful harakiri. Such subversion or destruction
cannot be described to be amendment of the Constitution as contemplated
by Article 368".

Chief Justice Sikri, Justice, Shelat, Grover, Hegde and

Mukerjee had generally agreed with the following basic features of the
Constitution.

(1) Supremacy of the Constitution.

(2) Republican and democratic form of government.

(3) Secular character of the Constitution.

(4) Federal character of the Constitution.

(5) Demarcation of power between the legislature, executive and the

judiciary.

(6) Dignity of the individual

(7) Unity and integrity of the nation.

The critics of the "basic structure theory” try to say that this
theory is the invention of the Judges' mind, not part of the Constitution
Moreover, the Judges spell out the so called basic structure feature in
vague and general terms.

In 1975, the Supreme Court had the opportunity to interpret

and consider the effect of its ruling in Keshvananda in the case of Indira
Nehru Gandhi Vs. Raj Narain (1975 supp. SC.C P.1). In this case, the
Allahabad High Court held that the election of Mrs. Gandhi to the l ok
 130

Sabha from the Rae Bareilly constituency in 1971 must be set aside on the
ground that she had been guilty of corrupt practices.. At that time the
Constitution 39th Amendment Act was passed which introduced two new
articles in the Constitution - Article 71 and Article 329-A. The Article 329-A
had six clauses of which the first three dealt with the future election to the
Parliament of persons holding the office of Prime Minister or Speaker at
the time of the election or who were appointed to the offices after their
election to Parliament. This can be termed as an abortive attempt to
review Keshvananda case.

The reaction of Mrs. Gandhi's government to the Supreme

Court judgement was one of the extreme displeasure verging on
vindictiveness. On the retirement of Chief Justice Sikiri, three senior
Judges (Shelat, Grover and Hedge) were superseded and a pliable Judge
A.N. Ray was appointed Chief Justice. The Indira Government tried to
neutralise the implication of Keshvananda case. In the name of social
justice Article 31C was further amended to ensure the primacy of Directive
Principles as against Fundamental Rights. Article 368 was amended by
the 42nd Amendment Act, 1976. Among other things, two new clauses (CIs
4 and 5) were added. Clause 4 lays down : "No amendment of the
Constitution (including the provisions of part III) made or purporting to
have been made under this Article ............. shall be called in question m
any Court on any ground". Clause 5 lays down: "For the removal of
doubts, it is hereby declared that there shall be no limitation whatever on
the constituent power of the Parliament to amend by way of addition,
variation or repeal the provisions of this Constitution under this Article'

The 42nd Constitution Amendment Act was challenged in the

Supreme Court in Minerva Mill's case. In 1980, the Supreme Court struck
down amended Article 31(C) and the newly inserted clauses 3,4 and 5 in
Article 368 of the Constitution by the 42nd Amendment. So, the Supreme
Court now has the power of judicial review over amendment acts also The
 1 3 1

apex court maintained its basic structure theory in more emphatic terms as
follows ;

A) Article 368 confers a limited power on the Parliament.

B) The limited amending power itself is a basic feature of the

Constitution.

C) Ouster of the court's jurisdiction to pronounce on the constitutionality

of amendments destroys the basic structure of the Constitution It
disturbs the delicate balancing of powers between the legislature,
executive, and the judiciary built into the Constitution.

The basic structure theory is thus reaffirmed.