NEW DIMENSION OF JUDICIAL REVIEW OF CONSTITUTIONAL

AMENDMENTS: A STUDY WITH SPECIAL REFRENCE TO

ARTICLES 31 A, 31 B, 31 C, READ WITH 9TH SCHEDULE OF
CONSTITUTION OF INDIA

By:
PUNEETHA CHOUDHARY
2nd Yr., BBA.LLB
CHRIST (deemed to be) UNIVERSITY
E-mail: puneetha.choudhary@law.christuniversity.in

www.probono-india.in

January 14, 2021

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ABSTRACT

The Indian constitution was amended in the year 1951 for the first time and this amendment
led to several modifications in the fundamental rights and started the era of land reform
through constitutional mechanism, and the Supreme Court of India which has the prime
responsibility of interpreting and protecting it. It also acts as the guardian of the Fundamental
Rights of the people. For this, the Supreme Court exercises the power to determine the
constitutional validity of all laws. It has the power to reject law or any of its part which is
found to be unconstitutional. This power of the Supreme Court is also called the judicial
review power. State High Courts also exercise this power but their judgements are often
rejected or modified or upheld by the Supreme Court. The principle of the judicial review
became an important feature of written Constitutions of many countries. The power of
judicial review has in itself the concept of separation of powers an important component of
the rule of law, which is the basic feature of the Indian Constitution. The power of Judicial
Review is included in the Articles 226 and 227 of the Constitution regarding the High Courts
are concerned and in the Articles 32 and 136 of the Constitution regarding the Supreme
Court. The judiciary in India has come to control by judicial review in every aspect of
governmental and public functions. Judicial review is basically a process under which the
legislative or the executive actions are subject to review by the judiciary. A court
authoritatively for judicial review may invalidate laws, acts and governmental actions that are
incompatible with a higher authority: an executive decision could also be invalidated for
being unlawful or a statute could also be invalidated for violating the terms of a constitution.
The Supreme Court’s power of judicial review extends to the Constitutional Amendments.
However, review of constitutional Amendments by judiciary in reference to Fundamental
Rights and its legal Validity has been a Contentious Political issue. This paper will be dealing
with introducing the topic judicial review along with its background, features and its legal
outlook with references to landmark case laws. Judicial review is often understood by two
distinct but parallel legal systems, firstly the civil law and secondly the common law, and
also by two distinct theories of democracy regarding the manner in which the government
should be organized with reference to the principles and doctrines of legislative supremacy
and therefore the separation of powers. Following the period of emergency, the judiciary was

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on the end for having delivered a series of judgments which were recognized by many as
violative of the basic human rights of Indian citizens and changed the way it looked at the
constitution and the Supreme Court said that any legislation is amenable to judicial review.

KEYWORDS

Amendment, constitution, India, articles, cases.

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INTRODUCTION

Judicial review is an important approach by which the court examines the actions of the
executive the legislature and the other governmental agencies and later decide whether the
actions are valid or not and are within the limits set in the constitution. This method or
approach has also been closely associated with the judicial activism, as judicial activism is
nothing but the exercise of the power of judicial review to set aside government acts. It also
tends to assess the judiciary to the rank of super legislature. Moreover, the judicial review
exercised by the supreme court and high court do play an important role in establishing
constitutional government in India by keeping the union and the state governments within
their respective jurisdictional spheres. Judicial review is nothing but a type of proceeding in
the court where a judge reviews the lawfulness of the decision or the action which is made by
the public body. These are also a challenge to the way in which the decision is made rather
than the rights or wrongs of the conclusion reached.

BACKGROUND

At first the word judicial review was used in the court of law in the case of Thomas Bonham
v. College of Physicians (1610) 8 Co Rep 114, where Dr Bonham was forbidden to practice
in London by the Royal college of physicians as he was not having a license for the same.
This case is also known for the violation of Principals of Natural Justice as in this case there
is pecuniary bias. As Dr Bonham is fined for his without a license, practicing the fine would
be distributed between the king and the college itself. Later judicial review was also
summarized in Marbury v. Madison 5 U.S. 1 (137) 1803, where the term period of President
Adam belonging to the federalist party came to an end and Jefferson the anti-federalist came
to power. On his last day, Adam appointed the members of the federal party as judges. But
when Jefferson came to power, he was against this. So, he later stopped Madison the
secretary of state, from sending the appointment letter to the judges. Marbury (one of the
judges) approached the Supreme Court and filed a writ of mandamus and here the Court
refused to entertain the plea and at first opposed the order of the legislature i.e., Congress and
hence the US Supreme court developed the doctrine of judicial review.

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FEATURES OF JUDICIAL REVIEW -

• Power of judicial review can be exercised by both the Supreme Court and High
Courts, as under Article 226 a person can approach the High Court for violation of
any fundamental right or for any legal right. Moreover, under the Article 32 a person
can move to the Supreme Court for any violation of the fundamental right or for any
question of law. However, the final power to interpret the constitution lies with the
Supreme Court. The Supreme Court is the highest court of the land and its decisions
are binding all over the country.

• Judicial Review of both state and central laws which means that laws made by centre
and state both are the subject to the judicial review, altogether the laws, order,
constitutional amendments, bye-laws, ordinance and all other notifications are subject
to judicial review which are included in Article 13(3) of the constitution of India.

• Judicial review is not applied automatically which means that the concept of judicial
review needs to be attracted and applied. The apex court doesn’t itself apply for
judicial review; it can be used only when a question of law or rule is challenged
before the Hon’ble court.

• Judicial Review is governed by the principle of procedure which is established by law

as given under the Article 21 of the Indian Constitution. However, the law has to pass
the test of constitutionality if it qualifies then it can be made a law and on the other
side, the court can declare it to be null and void.

• Judicial review of Ordinances, here, Article 123 and 213 of the Indian constitution
gives the president and the governor of the state to pass an ordinance. And an act of
ordinance by the president or the governor is within the same restrictions which are
placed on parliament which makes any law. This power is used by the president or
governor in exceptional conditions only and this power should not be used mala fide.

• Judicial review of Money Bill, here, Article 110(3) of the constitution of India states
that whenever a question arises for whether a bill is a money bill or not the decision of
the speaker of Lok Sabha shall be final. In the present situation, a money bill is
beyond the power of Judicial Review.

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 • Grounds for Judicial Review, where the Constitutional Amendment Judicial Review
in this phase is done for all the constitutional amendments done by the authority. All
the amendments which are in violation of the fundamental rights are declared to be
void and it is held to be unconstitutional. Altogether, the judicial review for the
constitutional amendments can be traced in history.

The extent of this judicial review in the Indian courts emerged in three dimensions; first, to
establish the fairness in administrative action, second, to protect the guaranteed constitutional
fundamental rights and finally, to rule on questions of legislative competence between the
Centre and the states.

THE JUDICIAL REVIEW (AS A PART OF THE BASIC STRUCTURE) -

In the landmark case of Kesavananda Bharati v. the State of Kerala AIR 1973 SC 1461,
which was decided by a nine judge bench the doctrine of the basic structure was laid down,
which stated that any law that is made should not be in violation of the fundamental rights
and if the amendments are made then it should be made as such that they do not eradicate the
basic structure. Basically, the legislature has power to amend the Constitution, but such
amendments shall not change the basic structure of the Constitution. However, it was further
noted that the basic structure was built on the foundation of dignity and freedom of the
individual which undoubtedly couldn’t be amended. It was also noted that in this case the
above are only illustrative and not comprehensive of all the limitations on the power of
amendment of the Constitution. It was also observed that fundamental rights are of utmost
importance and they should be preserved with all due respect by the state and provisions
should be made to protect them and abrogate them. Along with this notion, this case raised
questions on the constitutionality of the 25th amendment and hence, declared that the basic
structure of the fundamental rights should not be violated by the legislature or the state under
the provisions of the Article 368 and the second part of the Article gave the jurisdiction of the
court, a boot.

In another important case of Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, the
extended portion of Article 31C was eradicated completely with the rationale that it attacked
the fundamental rights under Article 368. In this the judgment also stood up for the concept

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of the judicial review which is not made available to the people in case of infringement of the
fundamental rights.

In the case of S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124 at 128 relying on
Minerva Mills Ltd. Case it was stated that it was well settled and established that judicial
review was a basic and essential feature of the Constitution. Moreover, if the power of
judicial review was absolutely eliminated, the Constitution would lose its basic structure.

JUDICIAL REVIEW WITH REFRENCE TO ARTICLES 31-A, 31-B, 31-

C

Article 31-A was added to the Constitution of India by the First Amendment, 1951. The
fourth amendment substituted various clauses in it. This Article of Indian Constitution gave
the people of India the right to hold and dispose of their property as they see fit. According to
which, the government can acquire the property of the people and by doing so, the
fundamental rights mentioned in Article 14 and 19 of Indian Constitution should not be
violated. Moreover, in other words, Article 31 A of Indian Constitution was immune to
Article 14 and 19 of Indian Constitution that provide for right to equality and the right to
freedom respectively, and this amendment helped in the abolition of the Zamindari system as
the government took the land from the Zamindars and used it for public welfare by either
redistribution or agriculture. The government also took control of different private companies
in order to use them for enhanced growth. However, this could be done for a fixed amount of
time after which, the control had to be returned and the government redistributed the mining
rights from mine lords and took control of the production and the distribution of various other
resources.

In Waman Rao & ors v. Union of India & ors (1981) 2 SCC 362 and I R Coelho v. State of
Tamil Nadu 2007 (1) SC 137 case, the first amendment in which the Article 31A was
introduced and the fourth amendment was held to be constitutional, which substituted the
new clauses to this Article. Hence, relying on the judgments of Minerva Mills case and
Waman Rao case and I R Coelho case Article 31A can be stated as constitutionally valid.

Article 31-B is also the result of the 1st Amendment Act of 1951, it was added as a
constitutional device to protect the specified statutes from any attack on the basis that they
infringe Part III of the Constitution. Moreover, it has retrospective effect which is clear from

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the words ever to have become void. It is in reference with the acts and laws mentioned in the
IX Schedule of the Indian Constitution, moreover, the IX Schedule of Indian Constitution is a
list of acts and laws which in the court of law cannot be challenged. In other words, basically
any such acts mentioned in this schedule are out of the reach of the Indian judiciary. Article
31b of the Indian Constitution states that the provisions mentioned in Article 31a are immune
from Indian judiciary and therefore cannot be invalid on the basis that they might violate the
fundamental rights under the Articles 14, 19 and 31 of Indian Constitution.

Article 31-C of Indian Constitution was included through the 25th amendment act of 1971
through which the government tried to give primacy to some Directive Principles of State
Policy over the fundamental rights. It also provides immunity from any challenge on the basis
of violation of the Articles 14, 19 and 31, and any law enacted for implementing the
directives in clause (b) and (c) of Article 39. The Supreme Court in the case of Sanjeev Coke
Manufacturing Company v. M/s. Bharat Coking Coal Ltd. AIR 1983 SC 239, struck down
article 31C as unconstitutional (Amended portion in 42nd Amendment Act) on the ground
that it destroys the basic features of the Constitution. The objectives were set out in the Part
IV has to be achieved without abrogating the means provided for by Part III. Thus, there’s no
conflict between the directive principles and the fundamental rights as these are meant to
supplement one another and the Court held that article 31C as originally introduced by the
25th Amendment is constitutionally valid.

There are two conditions which must be fulfilled for the execution of the Article 31 C; firstly,
a law for giving affect to the policy of the state to implement a Directive Principle in Article
39(b) or (c). Secondly, the Legislature made a declaration to that effect.
However, the question that whether or not the act is meant to secure the aim contained in
Article 39(b), (c) doesn’t depend on the declaration made by the legislature but on the
contents of the act as found by the court.

A LEGAL OUTLOOK IN REGARD TO CONSTITUTIONAL

AMENDMENTS -

Judicial Review in this period is done for all the constitutional amendments done by the
authority and all those amendments which are in violation of fundamental rights are declared
to be void and it is held to be unconstitutional. All the judicial review for the constitutional

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amendments can be traced in history. We have already seen in the above-mentioned case
laws that the constitutional amendments were challenged and all those against the
constitution are declared unconstitutional and held void. We can trace the marks of judicial
review of the constitutional amendment in the above-mentioned cases. The role of Judicial
Review in Indian Constitution is to protect and provide liberty and freedom to the people.
Some thinkers of India have observed that the scope of judicial review in India is very limited
and the courts in India do not enjoy as wide jurisdiction as the courts in America. The right to
constitutional remedies is itself a fundamental right and can be enforced in the form of writs
evolved in common law such as first, habeas corpus which is to direct to release a person who
is detained unlawfully, second, mandamus which is to direct a public authority to do its duty,
third, quo warranto which is to direct a person to leave an office assumed wrongfully, fourth,
prohibition which is to prohibit a lower court from proceeding on a case and lastly, certiorari
where the power being given to the higher court to remove a proceeding from a lower court
and bring it before itself.

The review of constitutional Amendments by judiciary in relation to Fundamental Rights and

its legal Validity has been a debatable Political issue. The doctrine of basic Structure has
allowed the application of judicial review to Constitutional amendments involving
Fundamental Rights also. This doctrine evolved in Kesavananda Bharati case, 1973,
moreover, the parliament can amend the constitution under the Article 368 but such
amendments should not take away or violate the fundamental rights and any law made in
contravention with this rule shall be made void (Article 13). As we have seen in the
Kesavananda Bharati case the constitutional validity of 24 th amendment (Enables Parliament
to dilute Fundamental Rights through Amendments of the Constitution, and empowers it to
amend any provision of the Constitution), 25 th amendment (The amendment also exempted
any law giving effect to the article 39(b) and (c) of Directive Principles of State Policy from
judicial review, even if it violated the Fundamental Rights) and 29th amendment was
challenged. The Court upheld the 24th Amendment Act and held that even though the
Parliament is entitled to amend any provision of the Constitution it is void since it takes away
invaluable fundamental rights. Even in the case of Golak Nath vs. State of Punjab AIR 1967
SC 1643, the Validity of three constitutional amendments (1st, 4th and 17th) was challenged
and it was upheld that Amending power and legislative Power of the Parliament were
essentially the same. Which means that the Amendment Acts under Article 368 Cannot
amend Fundamental Rights, as it Would Violate Article 13. In this case it for the first time

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the doctrine of prospective overruling was applied and it was held that the 17 th amendment
will be valid.

The court regarding the judicial review process has evolved few guidelines which are to be
used as guide in the process, which are;

• Doctrine of Severability- While interpreting the impugned law, the court needs to see
whether or not the law as a whole or some parts of it is unconstitutional. The Court
can declare the impugned law, as an entire or a part of it, unconstitutional as the case
may be.

• Doctrine of Progressive interpretation- The Indian judiciary has been guided by the
doctrine of progressive interpretation, which means that the Courts have interpreted
the provisions of the Constitution in the light of the Social, economic and legal
Conditions present at that point of time.

• Doctrine of Prospective Overruling- It is based on the premise that judicial

invalidation or new view of interpretation of law won’t affect the past transactions or
the vested rights but will be effective regarding the future transactions only.

• Doctrine of Empirical Adjudication- While exercising the power of judicial review

the Courts should make sure that they are not dealing with hypothetical cases and
therefore, it is necessary that the matter brought before the court must be of a concrete
nature. The court between the parties concerned in a particular case seeks to confine
its decisions as far as practicable within the narrow limits of the controversy.

• When the Constitutional validity of any law is challenged, the court will not hold it to
be ultra vires unless the invalidity is obvious from all doubts, for there is always a
presumption in favour of its validity. The court always begins with this presumption
that the legislature doesn’t exceed its powers, nor does it make any law that’s
inconsistent with the spirit of the Constitution.

LIMITATIONS OF JUDICIAL REVIEW

When we talk about come judicial review of administrative action though the presumption of
validity is not as strong in the case of administrative action as in the case of statutes.
However, when the legislature expressly leaves a matter to the discretion of an administrative

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authority the courts have adopted an attitude of restraint. It is also said that the question the
legality of the exercise of discretionary power cannot be questioned unless and until it is an
abuse of discretionary power, which includes mala fide exercise of power or, exercising the
power for an improper motive or, decision based on irrelevant considerations or in disregard
of relevant consideration, and in some cases the unreasonable exercise of power and the non-
exercise of discretion which comes when the power is exercised without proper delegation
and when it is acted under dictation.

CRITICISM POINTS -

• The observer describes the judicial review as an undemocratic system; it empowers

the court to make a decision on the fate of the laws passed by the legislature, which
represent the sovereign, will of the people.

• The Constitution of India doesn’t clearly describe the system of judicial review; it
rests upon the idea of several articles of the constitution.

• When a law is struck down by the Supreme court as to be unconstitutional, the

decision becomes effective from the date on which the judgement is been delivered.
Moreover, a law can face judicial review only when an issue of its constitutionality
arises in any case being heard by the Supreme Court. As such when the court rejects it
to be as unconstitutional, it creates the administrative problems and the judicial
review decision can create more problems than it solves.

• Moreover, many critics of the judicial review system as a reactionary system, as they
say that while determining the constitutional validity of any law, the Supreme Court
often see a legalistic and conservative approach, thus it can also reject progressive
laws enacted by the legislature.

• Judicial review may cause of delay and inefficiency. The people in general and the
law-enforcing agencies in especially sometimes plan to go slow or keep their fingers
crossed in respect of the implementation of a law. However, they too prefer to attend
and let the Supreme Court first decide its constitutional validity during a case which
will precede it at any time.

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 • It has been noted that on several instances the Supreme Court reversed its earlier
decisions. The judgment in the Golaknath case reversed the earlier judgments and the
judgment in the Kesavananda Bharati case reversed the judgment in the Golaknath
case. Same way the enactment was held justifiable, and then invalid and then again
justifiable and such reversals also reflect the element of subjectivity within the
judgments.

A large number of the supporters of judicial review don’t accept the arguments of the critics;
they argue that judicial review is an essential and very useful system for Indian liberal
democratic and federal system. It has been playing an important role and desired in the
protection and development of the constitution. It is observed that Judicial Review is essential
for maintaining the supremacy of the Constitution and for checking the possible misuse of
power by the legislature and executive. It is also a device for protecting the rights of the
people. The grant of judicial review power to the judiciary is also important for strengthening
the position of judiciary. It is also important for securing the independence of the judiciary. It
was noted that the power of Judicial Review has helped the Supreme Court of India in
exercising its constitutional duties.

CONCLUSION

As we know the judicial review is very important but at the same time absolute power to
review cannot be granted and by observing the judicial review as a part of basic aspect of the
Indian Constitution and the courts in India have given altogether a different meaning to the
theory of checks and balances. Judicial review also plays a vital role as protector of the
values of the constitutional and over the legislative action is vested in the high court’s and
Supreme Court under Articles 226 and 32 of the Indian constitution respectively. It is
observed that the Constitution of India, the supreme law of the land believes that amend your
procedures and doings to improve in the future. The Constitution 44th Amendment Act, 1978,
signifies the demise of the fundamental Right to Property, where the property right turned out
to be the most controversial right with lots of reforms and criticism along with it. With the
Article 31, Article 19(1) (g) and Article 31C being stated as unconstitutional and its second
part being shifted to Article 300A for making the fundamental right a constitutional right, the
property law kept diminishing. Ultimately, we have developed the concept of judicial review
and it has become the part of basic structure in case of Minerva Mills v. Union of India, and

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the basic structure doctrine also helps in preserving and protecting the spirit of the
constitution and to preserve the nature of democracy of India and protect the right of the
people. Moreover, we also see that any amendment or law which is violative of the rights of
the people are struck down by the court on the basis of the basic structure doctrine and thus
any law that tries to change the basic structure of the constitution is therefore invalid. So, it is
correct to say that judicial review has grown to safeguard the individual right, to stop the use
of arbitrary power and to prevent the miscarriage of justice.

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BRIEF ABOUT THE AUTHOR

Puneetha Choudhary, 2nd year BBA LLB (Hons.) from Christ (deemed to be) University,
Bangalore, having a keen interest in corporate law.

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