Judicial review of constitutional amendments- A comparison with other jurisdictions

The principle of Separation of power as established by Sir James Montesquieu emphasized over the non-
involvement of judiciary in the working of legislative and vice versa, but the system of checks and
balance which was also propounded by the former philosopher opened the gates for the debate of
judicial review of the constitutional amendments and its validity.

Judicial review in itself is a debatable singularity in democratic countries like India, its use in
constitutional amendments further adds complexity to the debate 1. The advocates of judicial review of
constitutional amendments claims that like any ordinary legislation, a constitutional amendment can
transmit the evils of unconstitutionality, in that case, why should such "unconstitutional constitutional
amendments" go devoid of judicial review. 2 The opponents, on the other hand, maintain that amending
the Constitution is the privilege of the political branches of the government, and the court should stay
away from such a "political question."5

Judicial review allows the court to review any legislature, which is contravening with the fundamental
duties and more precisely the basic structure doctrine. While some of the Nation States like Bangladesh
and India Support judicial review of Constitutional amendment, Countries like U.S.A who are strict
towards their policymaking does not allow judicial review of Constitutional Amendment. This different
approach of different nation is dependent upon various divergent factors some of them are faith in
amendment process, faith in elected representative, flexibility/Rigidity of the Constitution and many
other factors are responsible for this different approach.

Judicial Review of Constitutional Amendment in India

The backgrounds of judicial review were founded back in 1967, before that the constitutional
amendment were not even considered as “laws”. It was only after the GolakNath Case, where the
constitutionality of 1st ,4th and 17th amendment was challenged, this was perhaps for the first time
constitutional amendment were reviewed by the judiciary, which clarified that legislative powers and
amendment powers are the same. This made it clear that the judiciary can also review constitutional
amendment if it infringes the fundamental rights.

In 1973 in Kesavananda Bharati V. State of Kerala Case while deriving the principles of basic structure
doctrine explained the necessity of judicial review of constitutional amendment, and by Minerva Mill
Case (1980) the Supreme Court made it clear that judicial review is a basic structure and any authority
cannot remove it.

Judicial Review of constitutional amendment is based on the principle that if any constitutional
amendment is found to be violative of the fundamental rights it can be called under the ambit of judicial
review. The Ninth schedule is an exception to judicial reviews by virtue of the Kesavananda verdict as
the doctrine of basic structure is not applied to provisions before 24 April 1973. That means the
parliament has the power to save the laws from judicial review by listing them in the Ninth Schedule,
provided such laws do not violate the basic structure of Constitution. The principles of locus standi has

1
S.P Sathe The, Judicial Activism in India 98 (Oxford University Press, New Delhi, 2002.
2
(Moin Uddin and Nabi, 2020)
also been relaxed therefore only the person aggrieved can go to the court and only after this the court
can go for judicial review.

The IR.Colheo case of 2007 is one important turning point in understanding the concept of judicial
review where a legislation even though kept under the ninth scheduled can be called in question if any
part or the whole act is violative of the basic structure.

Judicial review is one of the important techniques by which the Courts examine the actions of the
legislature, the executive and the other governmental agencies, decide whether these actions are
valid, and within the limits set by the Constitution. However, the Concept of Judicial review has been
subjected to serious criticism. It has been closely associated with judicial activism. It tends to elevate
the Judiciary to the rank of Super legislature. It has clearly undermined the Status of Parliament.
Further, the exercise of judicial review by the Court has obstructed the passage of progressive social
legislation in India. Again, it has opened the floodgates for litigation and given rise to friction and
tussle among the various organs of the Government.

Despite its adverse effects, the Concept of Judicial review also has its utility. It is also beyond doubt
that judicial review exercised by Supreme Court and High Courts has played a crucial role in ensuring
Constitutional government in India by keeping the Union and State governments within their
respective jurisdictional spheres. By liberal interpretation, it also imparted a new meaning and
dimension to the provisions of the constitution as per the suitability of Changed circumstances. Most
importantly, it has ensured genuine freedom of the citizens (with liberal interpretation of the
Concerned provisions there by enlarging the Scope of it) by protecting their Fundamental Rights
against the undue interference by the legislature and the executive.

Judicial Review of Constitutional Amendment in Bangladesh