INTERNAL ASSESSMENT -1

Comparative Constitution
"Comparative Study on 'Amending Process': Constitutional Provisions v/s
Judicial Approach in India"

NAME – VIPIN KUMAR GAUTAM

PRN – 17010125146

COURSE – B.A. LL.B. HONS.

BATCH – 2017-2022

SEMESTER – IX

DIV –B
Introduction:

Judicial Review basically is an aspect of judicial power of the state which is exercised 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 citizen's 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 over emphasized.

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 the Constitution, 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 Gandhi's 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 India', 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' structure.
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 nation's
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."

envisaged in Arts. 19, 21, and 31, and reduce the Supreme Court's 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 Court's 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 'Golaknath 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 individual's 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 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.Bommal and
others v. The Union of India¹, 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.

IN Minerva Mill v. Union Of India: 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 India: 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) 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 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.