“Judicial Review Process in Constitutional

Amendments in India”

Introduction

Judicial Review, which is the salient feature of the modern constitutionalism means the
examination by the courts the constitutionality of the legislative statutes and executive or
administrative acts and to determine whether or not they are prohibited by the written
constitution or are in excess of power granted by it. In other words, it means ‘a limited
government’. The powers of Government are limited by various concepts of the constitutions
such as supremacy of constitution, division of power between Centre and the State, separation
of power etc. Judicial review is an example of check and balances in a modern governmental
system, where the Judiciary checks the functions of the state. However the provision of Judicial
Review is not explicitly mentioned in the constitution. In so far as the Fundamental Rights are
concerned the Judicial Review is explicitly mentioned in Article 13 of the constitution. 1 The
basic foundation of this concept lies in the statement of Sir Edward Coke in Dr. Boutham’s case
(1610) that “….when an act of Parliament is against common right and reason….the common
law will control it and adjudge such act to be void….”2 The scope of judicial review before
Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative
action, secondly to protect the constitutionally guaranteed fundamental rights of citizens and
thirdly to rule on questions of legislative competence between the Centre and the states. 3 Now
the other important ingredient of Indian constitutionality is the procedure of ‘Amendments’

1
Abdul Hamid (1992), constitutional law- a profile of justice M. Hidayatullah, Jaipur: Printwell publications
2
page 141, E.S. Corwin (1966), The Constitution
3
‘JUDICIAL ACTIVISM UNDER THE INDIAN CONSTITUTION’, An Address by Hon’ble Mr. K.G.
Balakrishnan, Chief Justice of India (Trinity College Dublin, Ireland – October 14, 2009)

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incorporated under Article 368 in the Constitution, reason being the Constitution should be a
dynamic document. It should be able to adapt itself to the changing needs of the society.

The meaning, etymology and origin of the concept of judicial review

After becoming independent from the 200 years’ of rule of British colonial power, India
adopted the British way of Parliamentary Democracy. But the concept of freedom of Judiciary
was taken or borrowed from the US constitution. The USA did impart considerable power to the
judiciary and made the judiciary free of the biased influence of the executive and the legislature.
That is the reason; The US has set an example in front of the whole world, when it comes to the
independence of Judiciary. The USA is one of the countries to have adopted the ‘principle of
separation of powers’. There is a clear and distinct line that separates the three major organs- the
executive, the legislature and the judiciary. India also follows the same pattern of separation of
power. The Constitution lays down the structure and defines the limits and demarcates the role
and functions of every organ of the state, including the judiciary, and establishes the norms for
their inter-relationship, checks and balances. Independence of the judiciary is essential for
upholding the rule of law.4 So checks and balances with separation of powers is one of the most
characteristic features of our Constitution and the power such defined, should be balanced. No
organ should have more power than the other; otherwise there will be tussles among all the
three organs.5
The concept of Judicial Review started from the case of Marbury v. Madison in 1800 in the
USA. In this case, Justice John Marshall held that judiciary has inherent power to review
actions by legislature even if no explicit provision is given in the constitution. 6 By adopting a
written constitution and an independent judiciary, India has provided the rule of law instead of
rule on men to the citizens. However, the rule of law will be rendered useless if the legislature is
able to make laws that violate the fundamental rights of the citizen. Thus, the constitution in Art
13 has provided the judiciary with the power to review laws made by the legislature. This is

4
K.G. Balakrishnan, “Executive to Blame for delayed justice”, The Tribune, April 10, 2007, p. 10.
5
M.P. Raju, “Conflict Within”, Frontline, Chenni, April 20, 2007, p. 24
6
Marbury v. Madison, 5 U.S. 137 (1803)

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called Judicial Review. In the case of L. Chandra Kumar v. Union of India held that the power
vested in SC by art 32 and High Court by art 226 over legislative action is a basic feature.7

Concept of Independent judiciary

As rightly pointed out by the Father of our Constitution, Dr. B. R. Ambedkar-

“There can be no difference of opinion in the House that our judiciary must be both
independent of the executive and must also be competent in itself. And the question is how these
two objects can be secured“.
After so many years of the construction of the constitution, the meaning of the independence of
judiciary is still not clear. Our constitution by the way of the provisions just talks of the
independence of the judiciary but it is nowhere defined what actually the independence of the
judiciary is. The answer to the question ‘why were the framers of our constitution so concerned
about the independence of judiciary’ lies in the very basic understanding that so as to secure the
stability and prosperity of the society, the framers at that time understood that such a society
could be created only by guaranteeing the fundamental rights and the independence of the
judiciary to guard and enforce those fundamental rights. 8 The independence of the judiciary is
the basic requisite for ensuring a free and fair society under the rule of law, which is responsible
for good governance of the country. It can also be said that an independent judiciary supports
the base of doctrine of separation of powers to a large extent. The task given to the judiciary to
supervise the doctrine of separation of powers cannot be carried on in true spirit if the judiciary
is not independent in itself.9
Shimon Setreet, an Israeli scholar, in his work work tries to explain the words “Independence”
and “Judiciary” separately, and says that the judiciary is “the organ of the government not
forming a part of the executive or the legislative, which is not subject to personal, substantive
and collective control, and which performs the primary function of adjudication”. The
independence of the judiciary as an institution and the independence of the individual judges
both have to go hand in hand as the independence of the judiciary as an institution is not

7
AIR 1997 SC 1125.
8
Supreme Court’s Advocates-on-Record Asson. V. Union of India, AIR 1994 SC 268
9
Austin, Granville Indian Constitution, the counterstone of a nation (New delhi, Oxford University Press), 2007,
pg. 50.

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possible without the independence of the individual judges and is the institution of the judiciary
is not independent, there is no question of the independence of the individual judges. 10
The provisions like Article 50, 211 etc. strengthen this concept. Article 50 contains one of the
Directive Principles of State Policy and lays down that the state shall take steps to separate the
judiciary from the executive in the public services of the state. The object behind the Directive
Principle is to secure the independence of the judiciary from the executive. Article 50 says that
there shall be a separate judicial service free from executive control. Article 211 provides that
there shall be no discussion in the legislature of the state with respect to the conduct of any
judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is
made in Article 121 which lays down that no discussion shall take place in Parliament with
respect to the conduct of the judge of Supreme Court or 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.
The salaries and allowances of the judges is also a factor which makes the judges independent
as their salaries and allowances are fixed and are not subject to a vote of the legislature. They
are charged on the Consolidated Fund of India in case of Supreme Court judges and the
Consolidated Fund of state in the case of High Court judges. Their emoluments cannot be
altered to their disadvantage (Art. 125(2)) except in the event of grave financial emergency.
Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail
them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the
Supreme Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may
confer the supplementary powers on the Supreme Court to enable it work more effectively.11

10
Shetreet, Shimon, Judicial Independence: new conceptual dimensions and contemporary challenges, in: Shetreet/
Dechenes, (1985), pg. 598-599.
11
Bhatia, Sukhcharan K., Jurisprudence of Amending Process under Indian Constitution, (1989), ISBN 81-7100-
179-3.

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 Amendment

The society in which we live is on a continuous change and accordingly the laws should be
changed or alter so as to meet the changing needs of the society. Therefore, a Constitution
enacted once may prove to be inadequate at a later stage. Thus, to make it suitable, the method
of amendments was introduced in every constitution by which a provision is modified by way
of addition, deletion or correction so as to suit the needs of the present.
Oxford’s Dictionary of Law says Amendment means changes made to legislation, for the
purpose of adding to, correcting or modifying the operation of the legislation. Black’s Law
Dictionary defines “Amendment” as a formal revision or addition proposed or made to a statute,
Constitution, pleading, order, or other instrument and In Parliamentary law, it means a „motion
that changes another motion’s wording by striking out text, inserting or adding text, or
substituting text.
A rigid constitution is a must in a federal system of governance. In case of Indian constitution, it
has been argued that it is not rigid enough. That there have been 93 amendments in last 50 years
proves this fact. As a comparison, there have been only 27 amendments in the constitution of
USA in the past 200 years. This has been done deliberately to ensure that the constitution can be
changed as per the needs of the times. However, to prevent excessive changes on the whims of
the ruling party, sufficient safeguards have been put.
The procedure of amending the constitution is given in Article 368. It says that the parliament
can amend the constitution under its constituent power. A bill must be presented in either house
of the parliament and must be approved by a majority of each houses and not less than 2/3
majority of each house present and voting. After such approval the bill is presented to the
president for his assent, upon whose assent the constitution shall stand amended as per the
provisions of this article.12

12
AIR 1973 SC 1461.

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 Amendment to the Constitution of India
The Framers of the Indian Constitution were aware of the fact that if the Constitution were too
rigid then there is a possible threat to democracy and if proves to be too flexible it would works
according to the whims and caprices of the ruling parties. Thus, a mixed approach was adopted,
proving it to be neither too rigid nor too flexible.
Applying the principles of ex visceribus actus (Statute must be constructed as a whole) to the
interpretation of the Constitution, Sikri CJ assumed that the meaning of amendment in the
constitution is relative to the provision in which it is used.13
Sikri S.M. was of the view that the expression means any addition or change in any of the
provisions within the broad contours of the Preamble and the Constitution to carry out the
objectives in the Preamble and the directive principles.

Judicial Trends

The inherent limitations as per the constitution and Parliament’s power to amendments can be
discussed in following phases:-
1) Phase I- In the case of Sankari Prasad v. Union of India 14, the Supreme Court held that
the power to amend the constitution including the Fundamental Rights is contained in
Article 368, and that the word “Law” in article 13 of the constitution includes only an
ordinary law and does not include ‘Constitutional Amendment’ which is made in
exercise of constituent power. The court thus distinguished between the ordinary
legislative power and constituent power. In Sajjan Singh v. State of Rajasthan15, the
Supreme Court held that the words ‘Amendment of Constitution’ means amendment of
all the provisions of constitution.
13
Basu, D D, Shorter Constitution of India (New Delhi: Prentice Hall Of India, 2nd ed., 1989), 144-5.
14
AIR 1952 SCR 89.
15
AIR (1965) 1 SCR 933.

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 2) Phase II- In the case of I.C. Golak Nath v. State of Punjab16, the Supreme Court by a
majority of 6 to 5 overruled the earlier decisions in Sankari Prasad and Sajjan Singh
and held that Parliament cannot amend the Fundamental Rights, as these rights are
assigned transcendental position under our constitution. The Chief Justice rejected the
argument that the power to amend the constitution was a sovereign power and that it did
not permit any implied limitations, and observed that amendment is a legislative process
and Article 368 lays down merely the procedure for amendment of the constitution. An
Amendment is a law within the meaning of Article 13(2) and therefore, if it violates any
of the Fundamental Rights it may be declared void. In answer to the question as to
whether there would be any way to change the structure of the Indian Constitution or
abridge the Fundamental Rights, J. Hidayatullah referring to the amending process
under the French and Japanese Constitutions, explained that Parliament could amend the
Article 368 to convoke another or new Constituent assembly. That Assembly might be
able to abridge or take away the fundamental rights, if desired. Interestingly, the court
however upheld the validity of 1st amendment, 1951, 4th Amendment, 1955, and the 17th
Amendment, 1964 though they were found abridging the scope of Fundamental rights.
The decision in this case, thus, would not invalidate the amendments made so far as to
the fundamental Rights (a large body of legislation had been enacted bringing about
agrarian reform in the country, pursuant to these amendments), but in future, Parliament
would, the court laid down, have no power to abridge any of the Fundamental Rights.
3) Phase III- In order to remove difficulties created by the decisions in Golak Nath’s case,
parliament enacted the 24th Amendment Act, 1971. It not only restored the amending
power of parliament but extended its scope by adding the words in article 368, “to
amend by way of the addition or variation or repeal any provision of the constitution in
accordance with the procedure laid down in this article”. A new clause added to Article
13 which provided that “Nothing in this article shall apply to any amendment of this
Constitution made under article 368”17. Thus the validity of a constitution amendment
act shall not be open to question on the ground that it takes away or affects a

16
AIR (1967) 2 SCR 762.
17
Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 2.

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 Fundamental Right. The 24th Amendment act has been held to be valid in
Keshvananda’s case (though subject to some qualifications).
4) Phase IV- In the case of Keshvananda Bharati v. State of Kerala 18, also known as
“Fundamental Rights case”, the question involved was as to what was the extent of the
amending power conferred by article 368. In this case a special bench of 13 judges was
constituted to hear the case for 5 months and court gave the longest judgement running
into 595 pages. In a judgement of 7 to 6 majority, Sikri, CJ said that the word
“amendment” must derive its colour from article 368 and rest of the constitutional
provisions. Reading the preamble, the fundamental importance of freedom of individual,
the importance of Directive Principles, and various other provisions, a conclusion
emerges that it was not the intention of the constitution makers to use the word
“Amendment” in the widest sense. The expression “Amendment of the Constitution” in
Article 368 means any addition or change in any of the provisions of the Constitution
within the broad contours of the Preamble and the Constitution to carry out the
objectives in the Preamble and the Directive Principles. Thus, it would mean that, while
fundamental rights cannot be abrogated reasonable abridgements of fundamental rights
can be effected in the public interest.
Khanna J., said that The word "amendment" postulates that the old Constitution must
survive without loss of its identity and must be retained though in an amended form and,
thus, the power does not include the power ti abrogate the basic structure. According to
Sikri, CJ., the ‘basic structure’ was built on the basic foundation i.e. the freedom and
dignity of the individual, the basic structure of the constitution consists of the following
features-
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
The minority view in the case held that there are no limitations, express or implied, on
the amending power. The word “amendment” did not include the power of completely

18
AIR 1973 SC 1461.

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 abrogating the Constitution at one stroke. It, however, seems wide enough to erode the
Constitution completely step by step so as to replace it by another constitution. Thus, in
their view Fundamental Rights can be abrogated.
5) Phase V- The case of Indira Gandhi v. Raj Narain19, popularly known as Election case,
an amendment (39th Amendment, 1975) was passed by Parliament for validating with
retrospective effect the election of Prime Minister, Mrs. Gandhi; which was declared
invalid by the Allahabad HC on the ground of having committed corrupt practice in the
new article 329A provided that the election of a person who hold the position of a prime
minister, can be challenged only before such a body or forum as may be established by
parliament by law, and not in a court. The Supreme Court invalidated the said article on
the ground that it was beyond the amending power of parliament as it destroyed the
‘basic structure’ of the constitution. It violated the free and fair elections which was an
essential postulate of the democracy which in turn was a part of basic structure of
constitution (Khanna J.).
Chandrachud J. said the Article was outright negation of right of equality conferred by
article 14, a right which is a basic postulate of the constitution. He held that these
provisions were arbitrary and were calculated to destroy the rule of law. The supreme
court added the following features as ‘basic features’ to the list of basic features as laid
down in the case of kesavananda Bharati:
i. Rule of law,
ii. Judicial review,
iii. Democracy, which implies free and fair elections,
iv. Jurisdiction of Supreme Court under Article 32.
The rule of law means Judicial Review, principles which are predictable or recognized,
exclusion of arbitrations in official action and equality under Article 14. Ray, CJ, held
that since the validation of PM’s election was not by applying any law, therefore it
offends the rule of law.
6) Phase VI- In the case of Minerva Mills Ltd. V. Union of India 20, the constitutional
validity of section 4 and section 55 of 42nd Amendment Act, 1976, which effects changes

19
AIR 1975 SC 2299.
20
AIR (1980) 2 SCC 591.

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 in the Article 31C and Article 368 respectively, was challenged by the petitioner
Minerva Mills Ltd.
Section 55of 42nd amendment act added two new clauses, clause (4) and (5) to article
368: clause (4) says No amendment of this Constitution (including the provisions of Part
III) made or purporting to have been made under this article [whether before or after the
Commencement of section 55 of the Constitution (Forty second Amendment) Act, 1976]
shall be called in question in any court on any ground. And clause (5) says that for the
removal of doubts, it is hereby declared that there shall be no limitation whatever on the
Constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article. Thus, it would mean that even the
“basic structure” of the constitution can be amended.
The above amendment was supported by union on the ground that it put an end to any
controversy as to which is supreme, Parliament or Supreme Court.
Clause (4) asserted the supremacy of the parliament. It was urged that parliament
represents the will of the people and if people desire to amend constitution through
Parliament, there can be no limitations whatsoever on the exercise of this power. The
theory of ‘basic structure’ as invented by the Supreme Court is vague and will create
difficulties. The amendment was intended to refit this situation. It was argued that the
amending body under article 368 has the full constituent power. In other words, the
Parliament acts in the same capacity as the constituent Assembly when exercising the
power of amendment under Article 368.
The supreme court by 4 to 1 majority struck down clauses (4) and (5) of Article 368 on
the ground that these clauses destroyed the essential feature of basic structure of the
constitution.
Hence the list of the features of basic structure can be summarized as:
i. Rule of law,
ii. Judicial Review,
iii. Democracy, which implies free and fair elections,
iv. Jurisdiction of Supreme Court under Article 32,
v. Limited power of parliament to amend the Constitution,
vi. Harmony and balance between Fundamental Rights and Directive Principles,

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 vii. Fundamental Rights in certain cases,
viii. Power of Judicial Review in certain cases.
The Recent Tussle between Government and Judiciary

In retrospect, the judiciary (particularly the Supreme Court) has been the most effective
opposition to the central government. This can already be stated for the Nehru era. Nehru was in
favour of radical land reform. But the Supreme Court insisted on full financial compensation of
former landlords, reducing the Indian Republic’s redistribution options. Nehru repeatedly
criticized specific rulings, but, being a trained lawyer himself, he never put the judicial
processes or institutions in doubt.
Indira Gandhi did not follow his example. She intended to nationalize the Indian banking sector
and abolish the privy purses and other privileges of the nobility that had formally ruled the
Indian princely states in colonial days. The Supreme Court overruled her decrees as not being in
line with the constitution. This led to a full-blown attack by the prime minister on the Supreme
Court.
Recently, the Apex Court of this country gave a very important verdict relating to our election
laws. For a layman, this judgment would basically keep the criminals out of our Parliament and
the State Legislatures. This case, famously known as Lily Thomas v. Union of India21, was
concerned with the constitutional validity of Section 8 (4) of the Representation of the People
Act, 1951. The Court declared the said provision as ultra vires the Constitution of India.
However, the sitting MLAs and MPs would not be affected by this decision as it would be
against the principles of natural justice to permit the subjects of a State to be punished or
penalized by laws of which they had no knowledge and of which they could not even with
exercise of due diligence have acquired any knowledge.22
“The only question is about the vires of section 8(4) of the Representation of the People Act
(RPA) and we hold that it is ultra vires and that the disqualification takes place from the date of
conviction,” a bench of justices A K Patnaik and S J Mukhopadhaya said. In effect, what the
Supreme Court order says is that the disqualification of an MP or MLA will come into effect
immediately after the representative is convicted by any court. The SC order also says that the

21
Writ petition (civil) no. 490, 2005.
22
Harla v. State of Rajasthan, AIR 1951 SC 467.

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representative cannot contest elections again and a representative cannot cast his vote from jail,
under any circumstances. The court said this order will not have a retrospective effect so that
those who have filed appeals in cases pending against them will not be affected.
And now Government is planning to counter the ruling by amending the act again to save their
“innocent MP/MLAs”.

Conclusion

A law may be constitutional even though it relates to a single individual if on account of some
special circumstances or reasons applicable to him and not applicable to others, that single
individual may be treated as a class by itself. There is always presumption in favour of the
constitutionality of a statute and the burden is upon him who attacks it to show that there has
been a clear transgression of constitutional principles. In order to sustain the presumption of
constitutionality the court may take into consideration maters of common knowledge, matters of
report, the history of the times and may assume every state of facts which can be conceived
existing at the time of the legislation. Thus the legislation is free to recognize degrees of harm
and may confine its restriction to those cases where the need is deemed to be the clearest. While
good faith and knowledge of the existing conditions on the part of a legislature are to be
presumed, if there is nothing on the face of the law or the surrounding circumstances brought to
the notice of the court on which the classification may reasonable be regarded as based, the
presumption of constitutionality cannot be carried to extent always that there must be some
undisclosed and unknown reason for subjecting certain individuals or corporation to be hostile
or discriminating legislation.
On a brief overview of the constitutional provisions and judicial decisions, it can be safely
concluded that the Indian Constitution enshrines the rule of law as a fundamental governance
principle, though the term is not mentioned expressly in the text of the Constitution. Having
said this, there are several challenges that pose threat to building a society based on robust rule
of law framework. Judicial interpretation suggests that when classified groups don’t qualify to
be the same, or similarly situated, they don’t qualify to be equal either, even if their differences
are an outcome of historic or systemic discrimination.23
23
As Ratna Kapur and Brenda Cossman note: “The first step in determining whether Article 14 has been violated is
a consideration of whether the persons between whom discrimination is alleged fall within the same class. If the

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But it is not with a view to infractions of the Constitution only, that the independence of the
judges may be an essential safeguard against the effects of occasional ill humors in the society.
These sometimes extend no farther than to the injury of the private rights of particular classes of
citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast
importance in mitigating the severity and confining the operation of such laws. It not only
serves to moderate the immediate mischiefs of those which may have been passed, but it
operates as a check upon the legislative body in passing them; who, perceiving that obstacles to
the success of iniquitous intention are to be expected from the scruples of the courts, are in a
manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.
This is a circumstance calculated to have more influence upon the character of our governments,
then but few may be aware of.

Findings and observations

The conjecture of power lies with the fact, not with recorded history. The theory of separation
of power is not reasonably said to be a work of enlightened mind, rather a work of fiction. The
emergence of new democratic states was based on the idea of equality, liberty and fraternity.
During the course of research work, the researcher observed and found that the two main pillars
of a democracy- Judiciary and Legislature are overpowering each other.
1) There has been a lot of controversy on the power of the parliament to amend the
constitution. Article 13 of the original constitution said that the state shall not make any
law that takes away or abridges the rights given to the citizens in Part III and any such
law made in contravention of this article shall be deemed void to the extent of
contravention. Thus, it seemed that parliament cannot amend the constitution in a way
that takes away the fundamental rights of the citizens.
2) Where a State action appears ex facie arbitrary as found in recent cases it should be
decided on the basis of the doctrine of justice, equity and good conscious.
3) There is the tussle going on between the Judiciary and Legislature, as it can be seen
through various case laws and decisions of the Judiciary.

persons are not deemed to be similarly circumstanced, then no further consideration is required”

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 4) The recent case is about the people’s representative’s act, in which SC ruled out that the
MPs/MLAs who are convicted under any crime would not be able to sustain their
position. In response to this ruling, the Parliament gave nod to the amendment in the act
in order to save their MPs/MLAs.
5) The separation of power between the organs is not working as according to the spirit of
the constitution and the balance of power among the organs is not maintained properly.
6) The use of constitutional law was intended to reach a wide societal comprise, and not
only between competing capital factions. In spite of undeniable difficulties, it is clear
that it has not failed to serve the nation.
7) The Indian constitution does have some inherent ambiguities. It stresses property among
personal, inalienable rights and thus protects the traditional social structure.
8) Old laws protecting privileges are actively enforced, whereas reforms in favour of the
oppressed, meant to foster social change, are inadequately implemented.- Upendra Baxi
9) Parliament and state assemblies pay scant attention to the issue of implementation while
drafting reform legislation.
10) Bending or evading rules is often understood to be an appropriate way of wielding
power.- Upendra Baxi
11) It is important to remember that the esteem in which the Indian public holds the
judiciary is high only in relative and not in absolute terms. The courts have a better
reputation than, for instance, the bureaucracy or the police.

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