"The petitioners [in
Golak Nath's case] left the Court with the consolation that posterity will
enjoy the fruits of the walnut tree planted by them. But it looks as if a storm
is brewing threatening the very existence of the tree."
In
these words, Justice Y. V Chandrachud described the event of the phenomenal
overruling of the famous GolakNath[1] decision by seven out of thirteen judges in Kesavananda Bharti v. State of Kerala[2] In
the words of S. P Sathe and rightly so, these two cases dealt with the most
fundamental issues of constitutional review and stirred much greater
controversy in the legal world than even Marbury
v. Madison[3]
did in the past.[4]
The legend of evolution of Judicial review is associated with, howsoever the
underlining or philosophical contribution, of English Legal System. In England,
Historically the parliament had its supremacy and the judiciary was not
supposed to review the act of the parliament which made it ostensible
“parliament supremacy”. The Judiciary was rather concerned in keeping the
action of executive in line with the constitutional values which were un-written.
The Judicial Review was maintained in Britain, related to maintaining the myth
that Judges do not create laws.[5]
This concept was carried by the British colonies such as India and hence we see
the presence of it in the Indian legal system. The U.S.A also being the colony of
Britain inherited the common law which provided the basis of Judicial Review.
Therefore when in Marbury the US Court declared legislative actions are also
under the purview of judicial review it assumed the power in itself as the
constitution of the US never expressly mandated it. Taking the cue from both these
countries, the framers opted indeed for Parliamentary system but they did go
with the option for Judicial Review, loosely.
The
Indian constitution is very specific and detailed and since provides for no
express mandate on judicial review the judiciary had to carve it out as
principle of constitutionalism and later held it as basic structure doctrine
which is all together is a debatable doctrine. While the drafters included a
declaration of fundamental rights and provided for judicial review, they also
sought to make the constitution detailed and specific with a view to leaving
the minimum of discretion to the judges[6].
Nehru's speech in the Constituent Assembly that no court would stand in the way
of social reform and that ultimately the constitution itself was a creature of
Parliament showed his distrust of the judges' capacity to adjudicate on social
policy.[7] The judicial review, therefore, as a tool, empowers the Judiciary to “strike down any action
which is in conflict with the constitution”.
Justice DR B. S Chauhan in a lecture on the judicial review said that
“it is the power of court to determine whether the acts of legislature and executive are consistent with the constitution or constitutional values and it identifies its supremacy in the constitution.”[8]
Encompassed in under Article 13 of the constitution the Judicial Review scheme in India is a sui generis concept as it finds no mention in the written text of the constitution. The operative part of Article 13(2) provides that ‘ The state shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention, of this clause shall, to the extent of such contravention, be void.[9] In other words it provides for the norms laid down. Article 32 and 226 provide for the enforcement of Fundamental Right enshrined in Part III of the constitution. Guarantee of a fundamental right is insignificant and Meaningless unless the court has the power to protect the same from the arbitrary violation[10]. It is at this point where this exercise of Judicial Review becomes important and hence makes for the basic structure
Article 13 and Judicial Review
As
discussed briefly above India finds the Judicial competence of review of
constitutional amendment or popular decision under article 13 and it was not
recognized until the virtuous case of Keshawanand Bharti was decided and was
reiterated in Indira Nehru Gandhi v. Raj
narain[11].
Let us therefore here examine the interplay of Judicial Review and Article 13 as
it stands today and thereafter look into case by case development. Article 13
prescribes that the state shall not make any law which abridges the fundamental
right of its citizen, as per Article 12 of the constitution the definition of
state which is ‘government and the parliament of India’ as well as the other
authorities and local authorities which are an instrumentality of the state and in the
territory of India is subjected to Judicial review under article 13. The
fundamental rights protected also includes the right to life and liberty[12]
and rights granting equal protection of law[13]
it authorizes the Constitutional Courts to invalidate any law which abridges
the fundamental right.
The
argument varied on the spectrum of whether a constitutional amendment is a law
or not as the term law as per article 13 includes ‘any ordinance’, order, by
law , rule , regulation, notification, custom or usage having in the territory
of India the force of law[14] The controversy which is settled now was
important to be dealt with as the previous governments pre 1973 used to evade
the judicial scrutiny a by arguing that constitutional amendment does not find
a place in the definition of ‘law’. Creation of 9th schedule and making constitutional amendments taking away the fundamental right of property was prime
example of it and hence the
determination of the question and securing rights became quintessential as this
open-ended definition did not provide for enough linguistic resource to settle
whether or not amendments are the law.
Are Constitutional Amendments law: The debate of ‘law’
It
was in the case of Shankari Prasad[15]
that for the first the argument that constitutional amendments are law was raised.
This struggle for the custody of constitution rose from the question concerning
the right to property, which until (1978) was a fundamental right under Article
31. J Patanjali Shastri rejected the argument by ‘harmonizing’ the wide scope
of amending power in Article 368 with the scope of judicial review. J Hidayatlluah &J Mudholkar a few years later in Sajjan Singh expressed
doubts in the correctness of the view adopted in Shankari Prasad that an amendment is
not a law under Article 13(2) and therefore could not be reviewed by the courts, stating that there must be a mechanism to save the "basic structure" or essence of the constitution" A stronger version of the same argument was raised in the case of IC GolakNath v. State of Punjab[16]
where a larger question of whether Parliament can amend Fundamental rights was
raised. By a slender majority of 6: 5 the Supreme Court ruled that the
distinction between constituent power and legislative power laid down in Shankari Prasad was unfounded which in
other words meant that the constitutional amendments were in the ‘purview’ of
law for Article 13(2). The court found fundamental rights to be so sacrosanct and transcendental that even
a unanimous vote of all members of the parliament would not suffice to
weaken or undermine them.[17]
The controversy was settled in the case of Keshawanand
Bharti v. State of Kerala; it raised questions of crucial importance for
the future of the Indian Constitution as well as Indian democracy. As professor Sathe puts in his word that the dilemma of judges to save the constitution or to succumb to the idea of
Parliament sovereignty, make people's rights vulnerable to be exercised was
evident. He said,
“From the close division among judges on the
scope of Parliament’s power of constitutional amendment as well as judicial
review of eminent domain, two clear alternatives regarding the role of a
constitutional court in a democratic society emerge. The Kesavananda Court was
faced with a difficult choice. On the one hand, it had before it the decision
in GolakNath, which imposed an embargo on future amendments of the fundamental
rights, and on the other, it had before it an amendment which sought to
completely eliminate judicial review. The dilemma of the majority justices was
how to concede the power of constitutional amendment to Parliament, which legal
logic required them to do, and at the same time save judicial review. Their
decision, although equally vulnerable from the standpoint of logic as that of GolakNath,
has to be understood in the light of such a dilemma.”[18]
The
court giving finality to the question maintained a ‘constitutional harmony’ as
it agreed that parliament is not restricted to amend the constitution and the
‘amendment in itself is not law for the purpose of Article 13(2)’ but also put
‘caveat’ which was propounded as Doctrine
of Basic Structure where it observed the amendments should not take away
the soul from the constitution. In the case Minerva
Mills v. Union of India[19]
the court elaborating upon it said that the tool of an amendment cannot be used to
destroy the constitution in itself.
The
evolution of basic structure doctrine has, over the years significantly been
subjected to popular academic and political criticism even by professors such
as Arun Shourie and Sathe. It is primarily due to the expansion of the ‘scope of
constitutional judicial review’ as it has extended far beyond the domain of
rights to include the scrutiny of constitutional amendments, executive
proclamation of national and state emergencies, executive policy framing
processes, and legislative inaction affecting core interest of citizen[20]
The court is often accused of widening the scope of judicial review beyond the
pre-defined normative constitutional boundaries[21]
usurping the power of executive and legislature[22]
by employing methods which are not meant appropriate in the course of
interpretation of the constitution. In the last three decades, it has evolved the ‘basic
structure review’ and it is definitely wrong to assume that it encompasses only
review of constitutional amendments and all other reviews as a mistake. This
widening of scope is to save the democratic exercise of the country from the perils
of brute majoritarianism and effectively ‘upholding the spirit of
constitutionalism’ in essence, therefore, today the doctrine of Judicial review
includes a review on a wide range of state action: Including, the executive proclamation of
national and regional emergencies to ordinary legislative and executive
actions by those in the higher elected and unelected executive authority.[23]
[2] AIR 1973 SC 1461.
[3] 5 U.S. (1 Cranch) 137
(1803).
[4] S. P. Sathe, Judicial Review in India: Limits and Policy,
35 Ohio St. L.J. 870 (1974).
[5] S. P Sathe, Judicial Activism in India: Transgressing
Borders and Enforcing Limits, Oxford
India Paperbacks 2nd ed New Delhi
[6] Supra at 4.
[7] See Constituent
ASSEMBLY DEBATES 1195-96.
[8] Chauhan Supra note 4 at 2.
[9] Const. art 13(2).
[10]
[11] AIR 1975 SC2299
[12] Const. art 21.
[13] Const. art 14.
[14] Const. art 13(3).
[15] [1952] 1 SCR 89.
[16] AIR 1957 SC 1643.
[17] Venkatesh Nayak, The Basic Structure of the Indian
Constitution, Commonwealth Human
Rights Initiative, www.humanrightsintiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf.
[18] Sathe, Supra note 4 at 374.
[19] AIR 1980 SC 1789.
[20] Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A
Study of Basic structure Doctrine, Oxford
India Paperbacks (2010)
[21] Arun Shourie, Courts and their Judgements: Promises,
Prerequisites, Consequences, Rupa
and Co., 399- 421 (2001)
[22] Supra at 5.
[23] Supra at 20.
" it is definitely wrong to assume that it encompasses only review of constitutional amendments and all other reviews as a mistake" This is a very nice article!
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