Judicial Review of Constitutional Amendments in India
Judicial Review of Constitutional Amendments in India :- In India, the Constitution is the supreme law of the land and it lays down the framework for the functioning of the country’s government and society. The Constitution can be amended but the procedure for doing so is laid down in Article 368 of the Indian Constitution. However, this power to amend the constitution is not absolute and is subject to scrutiny by the judiciary. In this article, we will discuss the concept of judicial review of constitutional amendments in India.
What is judicial review?
Judicial review is the power of the judiciary to review the actions of the legislative and executive branches of government and to declare them unconstitutional if they violate the provisions of the constitution. The Indian Constitution provides for judicial review as a fundamental feature of the constitution and is an essential aspect of the Indian democratic system.
judicial review of constitutional amendments
I. Article 368 of the Constitution – The power to amend the Constitution is vested in the Parliament, which is the legislative branch of the government. Article 368 of the Constitution sets out the procedure for amending the Constitution and provides that an amendment can only be made by a two-thirds majority of the members of both Houses of Parliament present and voting. However, the power to amend the constitution is not absolute and is subject to judicial review.
II. Establishment – The power of judicial review of constitutional amendments was established by the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala (1973). In this case, the Supreme Court held that while the Parliament has the power to amend the Constitution, this power is not absolute and is subject to the basic structure of the Constitution.
III. Basic Structure Doctrine – The Basic Structure Doctrine is a judicial doctrine that limits the power of Parliament to amend the Constitution. According to this theory, some features of the constitution are so essential and fundamental that they cannot be changed by the Parliament. These essential features are referred to as the basic structure of the constitution and include democracy, rule of law, federalism, secularism and independence of the judiciary.
IV. Power to review -The Supreme Court has held that any amendment that seeks to change the basic structure of the Constitution is unconstitutional and can be struck down by the court. The Court has the power to review constitutional amendments and determine whether they are consistent with the basic structure of the constitution.
V. Provisions of the constitution – In subsequent cases, the Supreme Court has held that the power of judicial review of constitutional amendments is an integral part of the basic structure of the Constitution. The court has also held that the power of judicial review is not confined to the basic structure of the constitution but it extends to all the provisions of the constitution.
VI. The High Courts and the Supreme Court – The power of judicial review of constitutional amendments is not confined to the Supreme Court alone. The High Courts of various states in India also have the power to review constitutional amendments. However, if there is a conflict between the decisions of the High Courts and the Supreme Court, the decision of the Supreme Court shall prevail.
VII. Matters of policy– It is important to note that the power of judicial review of constitutional amendments is not an unlimited power. The courts cannot substitute their decisions for the decision of Parliament in matters of policy. The courts can strike down an amendment only if it violates the provisions of the constitution or the basic structure of the constitution.
VIII. The principle of rule of law- The power of judicial review of constitutional amendments has been exercised in several cases in India. In the case of Indira Nehru Gandhi v. Rajnarayan (1975), the Supreme Court struck down an amendment that sought to exclude challenges to the election of the Prime Minister and the Speaker of the Lok Sabha from the jurisdiction of the courts. The court held that this amendment violated the basic structure of the Constitution and the principle of rule of law.
IX. Primacy to the Directive Principles – In the case of Minerva Mills Ltd. v. Union of India (1980), the Supreme Court struck down an amendment that sought to give primacy to the Directive Principles of State Policy over fundamental rights. The court held that the amendment violated the basic structure of the Constitution, which includes the principle of judicial review.
X. Finally, judicial review of constitutional amendments is an important aspect of the Indian democratic system. It ensures that the Parliament does not exceed its power to amend the Constitution and respects the basic structure of the Constitution. The power of judicial review is vested in the judiciary, which acts as a check on the legislative and executive branches of government. Maintaining a delicate balance between the three branches of government is important to ensure the smooth functioning of the Indian democratic system.
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