CASE REVIEW ON JUDICIAL REVIEW

Submitted by
KARAN SINGH(1-A)

(ENROLL NO. 02517703823)

Under the guidance of

DR. GARIMA SINGH
(POLITICAL SCIENCE)
Judicial Review
A prominent feature of Indian constitution is an independent judiciary having the power of
Judicial Review. As the custodian of the constitution the judiciary is vested with the power of
Judicial Review. This means that the Supreme Court is empowered to review the acts and
orders of the legislative and executive wings of the government and to declare them null and
void if they are not in accord with the constitutions. It is the Supreme law of the land and
any law inconsistent there with it is void. Judicial review is needed for the following reasons

1. To uphold the principle of the Supremacy of the constitution.

2. To maintain federal equilibrium (balance between Centre and the states)

3. Protect the fundamental rights of the citizens.

In India there is a rule of law and the constitution is the supreme law. The Indian constitution
is the law of the land and if any law passed violates the basic structure of the constitution
the Indian judiciary is having the power to nullify that law. The term judicial review is
actually not there in Indian Constitution but many articles are there which gives the clear
idea of judicial review in it.
The Indian judiciary are having the powers to examine the actions of legislature, executive,
administrative arms of the government and to ensure that such actions should adhere to the
provisions of our constitution. If found unconstitutional, the following provision shall be
made void.
Judicial review has two important functions look upon:

- Legitimizing the actions of the government.

- The protection of the constitution if the government tries to encroaches in it.

Constitutional Provisions in India

The India parliament has adopted this system of judicial review system from US Constitution
and the powers of the parliament are not supreme and the power is divided between Centre
and the states. The supreme courts also have powers of reviewing the enactments of both
the parliament and state legislatures. This makes the courts more powerful and grants an
instrument of the judicial review.
The various provisions of the system of judicial review has been granted by our Constitution
in various articles. These articles are Article 13, 32, 131-136, 143, 226, 145, 246, 254, 251
and 372. These articles would be explained in brief below:

Article 13 declares that any law which contravenes any of the provisions of the part of the
fundamental rights shall be void.
Article 32 provides the right to constitutional remedies which means that a person has the
right to move to the supreme court for getting his fundamental rights protected.
Article 226 empowers the high court to issue directions, orders or writs in the nature of
habeas corpus, mandamus, quo warranto and certiorari. Such directions, orders or writs may
be issued for the enforcement of fundamental rights or any other purpose.
Article 143 confers the power upon the supreme court advisory jurisdiction. The president
may seek the opinion of the supreme court on any question of law or fact of public
importance on which he thinks it expedient to obtain such an opinion.
Article 372(1) says that all the law in force in the territory of India immediately before the
commencement of the constitution shall be in force therein until altered, repealed or
amended by a competent legislature or an authority.
Article 131-136 entrusts the courts with the power of adjudicate disputes between
individuals, and the state, between the states and the union; but the court may be required
to interpret the provisions of the constitution and the interpretation given by supreme court
becomes the law honored by all courts of the land.
Article 245 states that the powers of both parliament and states legislature are subject to
the provisions of the constitutions. Any legitimacy of any legislation can be challenged
before the court of law on that particular subject matter or if the law infringes any o f the
fundamental right.
Article 246(3) states that the powers of both parliament and state legislatures are subject to
provisions of the Constitution of India.
Article 251 and 254 states that in case of inconsistency between union and state laws, the
state laws shall be void.
It must also be kept in mind that there is no express provision in our constitution which
empowers the courts to invalidate laws, they are only entrusted with the task of deciding
whether the law which is to be implemented is not unconstitutional or not. In case if part of
a provision becomes non-operative and other part of that provision continues to be in
operation. If the other part in operation cannot be operated without the other part, then
the whole of the law gets rejected.
For declaring any law unconstitutional the supreme courts have to properly mention that
which part of the provision is unconstitutional then that particular part or the whole of the
provision would be repealed from the Indian constitution. When a law is found to be
unconstitutional it ceases to operate from the date of the judgement given by the courts. All
the previous decisions which were taken before the day of declaration, shall continue to
remain valid.
 Golaknath Vs State of Punjab

Citations
AIR 1643, 1967 SCR (2) 762
Supreme Court of India
Date of Judgement
27 February 1967
Bench
K. Subba Rao (CJ), K.N Wanchoo, M. Hidayatullah, J.C. Shah, S.M. Sikri, R.S. Bachawat, V.
Ramaswami, J.M. Shelat, , Vashishth Bhargava, G.K. Mitter, C.A. Vaidyalingam.
Headnotes
Constitution of India, Article 13(2), 368, 245,248, Schedule 7, list 1; Punjab Security and Land
Tenures Act 1953; Mysore Land Reforms Act 1962; Constitution 17th Amendment Act 1964
The Parliament has the right to amend anything but it cannot amend or change any of the
fundamental elements of the basic structure. Parliament cannot uphold the fundamental
rights of the citizens of this country over by arbitrary actions. According to Article 368 of
Indian Constitution Parliament may in exercise of its power to amend by way of addition,
variation or repeal any provision of this Constitution but nothing in Article 13 shall apply to
any amendment made under this article.
Facts
• Respondent (State of Punjab & Anrs.), Petitioner (C. Golaknath & Ors.)

• In 1953, the then Punjab state government enacted Punjab security of land tenures
act, 1953. This Act was placed under the ninth schedule of the constitution of India
by the 17th constitutional amendment Act, 1964.

• In Jalandhar Punjab, two brothers called Henry and William Golaknath owned around
“500 acres of farmland.”

• The Punjab security and Land Tenures Act stated that the brothers could only keep
thirty acres. A few acres would be given to tenants, and the remaning would be
declared surplus and taken over by government.

• This was challenged by the family of golaknath within the courts. Further, this case
was mentioned the Supreme court in 1965.
 • The family filed a petition under Article 32 challenging the 1953 Punjab Act on the
grounds that it denied them their constitutional rights to acquire and hold property
and practice any profession

Issues- 1
 Whether the parliament by law can amend the fundamental rights or not?

No earthly wisdom can foresee every possible situation which may have to be faced in
future. Nothing may remain static in the world. Nature demands change. A political
society undergoes changes with the passage of time. To face new problems and
challenges changes and modifications are called for in all aspects of national life. It is
therefore, impossible to make a constitution which can satisfy the needs of the people
for all times to come. Changing circumstances will require modification of constitutional
provisions. A constitution that denies the right to amend it is likely to be destroyed and
replaced by the succeeding generations. It is therefore wise to provide for a mechanism
to change the constitution in the Constitution itself. That is why every modern
constitution provides for a machinery or process to amend its provisions. The framers of
the Indian Constitution provided for a process which is neither too rigid nor too flexible.
Article 368 specially deals with amendments but some other Articles in the Constitution
provide for amendments by ordinary legislative process.

Issues- 2
 Whether such amendment is a law under Article 13(2) of the Constitution?

Since 1951, questions have been raised about the scope of the constitutional amending
process contained in Article 368. In Shankari Prasad Singh v. Union of India, the
argument against the validity of the 1st Amendment was that Article 13 prohibits
enactment of a law infringing or abrogating the Fundamental Rights that the word Law in
Art. 13 would include any law; even a law amending the Constitution and, therefore, the
validity of such a law could be judged and scrutinized with the reference to the
fundamental rights which it could infringe. Here in this case there was a conflict between
Arts. 13 and 368. Adopting the literal meaning of the constitution, the Supreme Court
upheld the validity of the 1st Amendment. The Court rejected the contention and limited
the scope of Art. 13 by ruling that the word Law' in Art. 13 would not include within its
compass a constitution amending law passed under Art. 368. The Court stated on this
point: we are of the opinion that is the context of Art. 13 laws must be taken to mean
rules and regulations made in the exercise of ordinary legislative power and not
amendments to the Constitution made in the exercise of constituent power with the
result that Art. 13(2) do not affect amendments made under Art. 368.

The Court held that the terms of Art. 368 are perfectly general and empower
Parliament to amend the Constitution without any exception. The fundamental rights
are not excluded or immunized from the process of constitutional amendment under
Art. 368. These rights could not be invaded by legislative organs by means of laws
and rules made in exercise of legislative powers, but they could certainly be
curtailed, abridged or even nullified by alterations in the Constitution itself in
exercise of the constituent power.

There is a clear demarcation between ordinary law, which is made in exercise of

legislative power, and constitutional law, which is made in exercise of constituent
power. Both Article 13 and 368 are widely phrased and conflict in operation with
each other. To avoid the conflict, the principle of harmonious construction should be
applied. Accordingly, one of these Articles ought to be read as being controlled and
qualified by the other. In the context of Article 13, it must be read subject to Art. 368.
Therefore, the word law' in Art. 13 must be taken to refer to rules and regulations
made in exercise of ordinary legislative power, and not to constitutional
amendments made in the exercise of the constituent power under Art. 368 with the
result that Art. 13(2) do not affect amendments made under Art. 368. The Court,
thus, disagreed with the view that the fundamental rights are inviolable and beyond
the reach of the process of constitutional amendment. The Court, thus, ruled that
Art. 13 refer to a legislative law that is an ordinary law made by a legislature, but not
to a constituent law that is a law made to amend the constitution. The Court thus
held that Parliament could by following the procedure' laid down in Art. 368 amend
any fundamental right.

Again in Sajjan Singh's case this issue came up. But the Supreme Court in this case
ruled by majority of 3:2 that the pith and substance of the Amendment was only to
amend the fundamental right so as to help the State Legislatures in effectuating the
policy of the agrarian reform. The conclusion of the Supreme Court in Shankari
Prasad's case as regards the relation between Arts. 13 and 368 was reiterated by the
majority. it felt no hesitation in holding that the power of amending the Constitution
conferred on Parliament under Art. 368 could be exercised over each and every
provision of the Constitution. The Court refused to accept the argument that
fundamental rights were eternal, inviolate, and beyond the reach of Art. 368.
Judgement
The judgement reversed Supreme courts earlier decision which had upheld Parliaments
Power to amend all parts of the constitution, including Part III related to Fundamental
Rights. The judgement left the Parliament with no power to curtail Fundamental Rights. The
Supreme Court, Out of Eleven justices, 6 justices were in the Favour of petitioner (Majority)
and 5 justices against the petitioner. By the Thin Majority of 6 held a constitutional
amendment under Article 368 of the constitution was an ordinary “law” within the meaning
of Article 13(3) of the constitution. The Majority did not believe there was any difference
between ordinary Legislative power of parliament and inherent constituent power of
parliament to amend the constitution. Since according to Article 13 (2), the parliament could
not make any law that abridges the Fundamental Rights contained in Part III of the
Constitution, the meaning of 13, could not be in violation of Fundamental Rights which is
contained in the Constitution of India.