COMPARATIVE CONSTITUTIONAL LAW

ASSIGNMENT ON-
JUDICIAL REVIEW IN COMPARATIVE STUDY WITH INDIA, USA
AND BANGLADESH

Submitted to
DR. MUSADIR FAROOQ
Submitted By
INJAMAM UL HAQUE
(Student ID: - 202306274)
(LLM (Self Finance)
SEMESTER -1

1
 CONTENT

1. ABSTRACT
2. INTRODUCTION
3. ORIGIN
4. POWER OF JUDICIAL REVIEW
5. COMPARATIVE ANALYSIS OF USA, BANGLADESH AND
INDIA
5.1. JUDIAL REVIEW IN USA
5.2. JUDIAL REVIEW IN BANGLADESH
5.3. JUDICIAL REVIEW IN INDIA
6. IMPORTANT DOCTRINE FORMULATED BY COURTS
THROUGH JUDICIAL INTERPRETATION
7. JUDICIAL REVIEW IN CONSTITUIONAL AMENDMENTS
8. CONCLUSION

2
 1. ABSTRACT
This project is written on the subject of “Judicial Review”: A Comparative Study under
Bangladesh, India, and USA Constitution”. ‘Judicial Review’ may be fundamentals whereby
powers and responsibilities are divided among the branch, Executive Office of the
President, and branch. The officials of every branch are selected by different procedures and
serve different terms of office; each branch may prefer to block action of the
opposite branches through the system of checks and balances. The framers of the
Constitution designed this technique to make sure that nobody branch would accumulate an
excessive amount of power which problems with public policy and welfare
would tend comprehensive consideration before any action was taken. within the ongoing
writings, might wish to give an attempt demonstrate the concept and application of this
important doctrine in Bangladesh, India, and US Constitution. For the betterment of
dialogue , this project are divided into several chapters which details of the caption.

2. INTRODUCTION
In India, the essence of Judicial review is that the supremacy of law. it's the facility of
the court to review the actions of legislative, executive and judiciary. it's the
good weapon within the hands of the court to carry unconstitutional and unenforceable
any law and order which is in conflict with the essential law of the land. This topic
will affect the varied doctrines formulated by the Apex Court on the idea of review, for
e.g., Doctrine of Severability, Doctrine of Eclipse, and Doctrine of Prospective
Overruling etc.

Judicial Review is primarily rooted within the doctrine of “Separation of Powers” as

identified by Montesquieu and it works as a part of “Checks and balances” system
among the powerful organs of the state; where the judicial organ plays the supervisory
role over the legislative and therefore the executive branches of the government.
Definition of judicial review varies from countries to counties, as some countries follow
the doctrine of parliamentary supremacy where some others follow the doctrine of
constitutional supremacy. Nature and extent of review also depend upon the system of
the country. In the United Kingdom, by the name of review, the Court actually
supervises the facility exercised by the general public body. within the Constitution of

3
Bangladesh, the term “Judicial Review” isn't expressly stated but this very concept is
impliedly included within the Constitution. Review system is indirectly supported by
Articles 7(2), 26, 44(1) and 102 of the Constitution of Bangladesh. The concept
of review may be a significant principle of constitutional law and most of the democratic
countries and even some undemocratic counties have taken this principle into their own
practice. This doctrine undoubtedly works as a watchdog principle which vastly ensures
the mutual checks and balances among the powerful organs of the government. However,
in Bangladesh the concept of Writ petition may be a borrowed concept and this principle
has been borrowed from the practice of the principle of review within the UK and
therefore the USA. Within the UK though the concept of review has been criticised as
undemocratic practice, its gradual development has not been ignored by the teachers and
professionals. Though the concept of Writ petition has been sometimes criticised as
unconstitutional and undemocratic in Bangladesh, academic and professional debate for
its gradual development may be a need of the time.

3. ORIGIN
In India, review is not defined anywhere within the Constitution of India. But it has been
incorporated by Indian Judiciary in respect of Indian context. Its origin may traced from
leading judgment within the case of Marbury v. Medison, 1 of the Supreme Court
of US of America wherein JUDGE Marshall of the US Supreme Court observed as
follows; who apply the rule to particular cases must necessarily expound and interpret
the rule so if a law be con to the Constitution; if both the law and therefore the n
Constitution apply to a specific case, the court must either decide that case comfortably
to the law disregarding the Constitution or a comfortably to the Constitution,
disregarding the law; the court must decide which of those conflicting govern the
case. This is often the very essence of judicial duty.

Thus Marshall, C.J., had asserted that if there's conflict between the law and therefore
the Constitution, then the Constitution must prevail. This power of the court is
named judicial review". Hence, judicial review is that the power of judges of the Supreme
Court to interpret the Constitution and to refuse to implement those measures that in their

1
2 L Ed. 60 (1803) :1 Cranch 137

4
opinion are in conflict with the Constitution. In India, the facility of judicial review has been
expressly conferred on the upper judiciary. Article 32 of the Constitution expressly provides
that the proper to maneuver the Supreme Court by appropriate proceedings for the
enforcement of fundamental rights is guaranteed and therefore the Court shall have power to
issue directions or orders or writs within the nature of habeas corpus, mandamus,
prohibition, hearing and certiorari whichever could also be appropriate for the enforcement
of fundamental rights. Similar power has been conferred to the supreme court under Article
226 of the Constitution within the case of Şarojini Ramaswami v. Union of India, the Apex
Court has observed as follows :“Judicial review is that the exercise of the Court's inherent
power to work out the legality of an action and award suitable relief. This
power doesn't need further statutory authority since it's granted by the Constitution of India
to the Superior Courts. In consistent with clause (a) of Article 13 of the Constitution of
India, “all laws effective within the territory of India immediately before the commencement
of this Constitution, in thus far as they're inconsistent with the provisions of this part (i.e.,
part III of the Constitution), shall, to the extent of such inconsistency, be void.

According to clause (b) of Article 13 of the Constitution of India, “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 the contravention, be void."

From the above provision it's clear that clause (1) of Article 13 deals with Pre-constitutional
laws whereas clause (2) of Article 13 deals with Post-constitutional laws and both sorts
of laws shall be void to the extent of inconsistency if they violate any of the rights given in
Part-III.
.
In the case of Keshavam Madhava Menon v. State of Bombay2, it had been held by the
Supreme Court that, “By reason of clause (1) of Article 13 of the Constitution of India, within
the event, it's held that the supply is unconstitutional, an equivalent having reference to the
potential nature would be void only with effect from the commencement of the Constitution".

Within the case of A.K. Gopalan v. State of Madras 3 , the Apex Court found Section 14
of the Preventive Detention Act, 1950 as ultra vires the Constitution. But the Court also

2
AIR 1951 SC 128
3
AIR 1950 SC 27

5
made it clear that removal of Section 14 from the Act doesn't change the character and
structure of the legislation. Thus, removal of Section 14 of the Act didn't render the
rest Act invalid.

In Bangladesh there's currently no environmental legislation, which provides the

chance to an individual to bring proceedings for remedy or restrain the breach of an Act.
Notwithstanding, an individual may seek judicial review under the Civil Procedure Code
1908 or Criminal Procedure Code 1898, though there has been little reference made to
the opportunities available for relief under these Codes.

4. POWER OF JUDICIAL REVIEW

'Judicial Review' is that the power of courts to pronounce upon. the constitutionality of
legislative acts which fall within their normal jurisdiction to enforce and therefore
the power to refuse to enforce like they find to be unconstitutional. and hence
void 4 .Judicial Review said Khanna J., within the Fundamental Rights case 5 ” has thus
become an integral a part of our Constitutional System and an influence has been
vested within the High Courts and therefore the Supreme Court to make a decision about
the constitutional validity of the provisions of statutes. If the provisions of the statutes
are found to be violative of any of the articles of the Constitution which is that
the touchstone for the validity of all laws the Supreme Court and therefore the High
Courts are empowered to strike down the said provisions". That power corrupts a
person and absolute power corrupts absolutely which ultimately results in tyranny,
anarchy and chaos has been sufficiently established in course of evolution of human
history, and every one round attempts are made to erect institutional limitations on its
exercise. When Montesquieu gave his doctrine of separation of powers, he was
obviously moved by his desire to place a curb on absolute and uncontrollable power
in any organ of the government.

A legislature, an executive and a judicial power comprehend the entire of what's meant
and understood by Government. it is by balancing each of those two powers against the
opposite two that the efforts in attribute towards tyranny can alone be checked and

4
E.S. Crown-Essay on the Judicial Review in Encyclopaedia of Social Sciences, Vol. VIII, p. 457.
5
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

6
restrained and any freedom preserved within the Constitution. 6 Judicial Review is thus
the interposition of judicial restraint on the legislative also because the executive organs
of the government. The concept has the origin within the theory of limited Government
and within the theory of two laws-an ordinary and supreme (i.e., the Constitution).From
the very assumption that there's a supreme law which constitutes the inspiration and
source of other legislative authorities within the body polity, it proceeds that any act
of the standard law-making bodies which contravenes the provisions of the supreme law
must be void and there must be some organ which is to possess the facility or authority
to pronounce such legislative acts void. 7

5. COMPARATIVE ANALYSIS OF USA, BANGLADESH AND INDIA

5.1. JUDICIAL REVIEW IN USA
The doctrine of review was for the primary time propounded by the Supreme Court of
America originally in the US Constitution didn't contain an express provision for judicial
review. the facility of judicial review was, however, assumed by the Supreme Court of
America within the historic case of Marbury v. Madison8, The facts of the case were as
follows: The Federalists had lost the election of 1800, but before leaving the office that
they had succeeded in creating several new judicial posts. Among these were 42 justices
of peace, to which the retiring Federalists President Adams appointed forty- two
Federalists. The appointments of commissions were confirmed by the Senate and that
they were signed and sealed, but Adam's Secretary of State, Marshall, did not deliver
certain of them. When the new President Jefferson, assumed office, he instructed his
Secretary of State, Madison to not deliver seventeen of those commissions including one
for William Marbury. Marbury, filed a petition within the Supreme Court for the
difficulty of a writ of mandamus to Secretary Madison ordering him to deliver the
commissions. He relied on Section 13 of the Judiciary Act of 1789 which provided: "The
Supreme Court shall have the facility to issue writs of mandamus, in cases warranted by
the principles and usages of law, to persons holding office, under the authority of the
United States". The Court, speaking through Marshall, who had now become judge, held
that Section 13 of the Judiciary Act was repugnant to Article III ,Section 2 of the

6
Letters by James Adams to Richard Henry.
7
Basu's Commentaries on Constitution of India, Vol. 1.
8
2L Ed. 69.

7
Constitution inasmuch because the Constitution itself limited the Supreme Court's
original jurisdiction to cases “affecting ambassadors, other public ministers and
consuls, and people to which a State is party". Since Marbury fell in none of
those categories the court had no jurisdiction in his case. The observations of Marshall,
C.J., therein case are pertinent to notice:
"The Constitution is either superior paramount law unchangeable by ordinary means
or it's on A level with ordinary legislative Acts, and like other Acts is alterable when the
legislature shall please to change it. Certainly, all those that framed written Constitutions
contemplate them as forming the elemental and paramount law of the state and,
consequently, the idea of each such Government must be that an Act of the legislature
repugnant to the Constitution is void. And further, "It is emphatically the province and
duty of the Judicial slain department to mention what the law is."

5.2. JUDICIAL REVIEW IN BANGLADESH

On the opposite hand consistent with Article 22, 26, 55, 65, 94(4), 107, 109 & 116A of
the Constitution of Bangladesh we will say that the doctrine of Judicial Review is well
established in Bangladesh constitution. Anchored by the Bangladesh Constitution first
three articles of the country, Legislative, Executive and therefore the Judiciary
(judicial) structure our three branches of state. The Constitution clearly lays down the
foundations of a judiciary that's separate and independent from the other branches of
state . it had been introduced in recognition of the very fact that the efficiency of the
judiciary and therefore the entire justice system depends largely on the independence of
the judiciary.

Article 105 of the Constitution of the People’s Republic of Bangladesh provides that subject
to the provisions of an Act of Parliament and any rules made by it, the Appellate Division
may review its own judgment or order. When the court exercise the law of the Government
not his work then the question arise of judicial review. The principle ground when and by
what the judicial review may exercise —by following points.9
1. Ultra vires
2. Abuse of discretionary power
3. Proportionality

9
Mahmudul Islam; Constitutional Law of Bangladesh; 2nd Edition-2001 (Dhaka-Mollick Brother’s)

8
4. Legitimate expectation
5. Unreasonable exercise of power
6. Estoppels
7. Illegality.
a. Natural justice
b. Right to reason
c. Rule against bias
d. Fairness.
e. Jurisdiction.
f. Justifiability.
g. Interpretation.

PRIMARY VIEWS
Judicial review is law made by the legislature and the judiciary has to power to examine the
constitutionally of laws made by the legislature.
LIBERAL VIEWS
(1) Judicial review of made by the legislature,
(2) Judicial enforcement of fundamental right.
(3) The judicial reviews of administrative action are under the provisions of constitution and
also the judicial review of administrative action is goes under the provision of stationary law.
(4) Judicial review also considers delegated legislation.

In the sense of constitutional supremacy: Pertinent cannot make any law to avoid the
constitution. It the legislative passed such law than the Supreme Court may void these types
of law.
Judicial Review in the sense of parliamentary supremacy:
(1) Judicial review of administrative actions under provision of statutory bus.
(2) Judicial review of delegated legislation.

In the sense of parliamentary supremacy only the court observed that weather the law is in
consist with present law or not.
But in the kind of constitutional Supremacy every action of law can be challenge.

9
Farzand Ali vs. West Pakistan10, The power of judicial review of superior courts is a matter
of constitutional conformant in our country and it cannot be taken away or abridged by
ordinary legislation.
Anwar Hossain Chowdhury vs. the State 11 Judicial Review is a basic feature of the
Constitution and as such cannot be taken away of control over by government of the
constitution.”

The importance of judicial review in Bangladesh, opportunity for the general public to
participate in the judicial review creates a right for people to approach the court for relief
over a breach of an Act. It makes it possible to challenge a determination of the consent
authority .Judicial review of environmental matters therefore allows the general public a
chance to participate within the environmental planning and development process.

5.3. JUDICIAL REVIEW IN INDIA

In the Indian Constitution there is an express provision for judicial review, and in this sense it
is on a more solid footing than it is in America. In State of Madras v. V.G. Row,12 Patanjali
Sastri, C.J., observed, "Our Constitution contains express provisions for review of
legislation on its conformity with the Constitution, unlike in America where the Supreme
Court has assumed extensive powers of reviewing legislative acts under cover of the
widely interpreted 'due process' clause within the Fifth and Fourteenth Amendments. If
then, the courts during this country confront to such important and none too easy task, it
is not out of any desire to tilt at legislative authority and a crusader's spirit, but in
discharge of duty plainly laid upon them by the Constitution. this is often specially true
as regards the elemental rights on which the Court has been assigned the role of sentinel
on the quivive".

But even within the absence of the provision for judicial review, the courts would ready
to invalidate a law which contravened any constitutional provision, for, such power
of judicial review follows from the very nature of constitutional law. In A.K. Gopalan v.
State of Madras, 13 Kania, C.J., acknowledged that it had been only by way of abundant
caution that the framers of our Constitution inserted the precise provisions in Article13.

10
22 DLR (1970) 203.
11
1989 BLD (Special Issue) 1
12AIR 1952 SC 196. R
13AIR 1950 SC 27.

10
He observed "In India, it's the Constitution that's supreme which a legislation to be valid,
must be altogether conformity with the constitutional requirements and it's for the
judiciary to make a decision whether any enactment is constitutional or not". In Binoy
Viswam v. Union of India 14 the Supreme Court held–The Supreme Court or the high
court in exercise of its power of judicial review can declare law passed by the Parliament
or the State Legislature as invalid on only two grounds–(i) it's not within the competence
of Legislature which passed the law and/or (ii) it's in contravention of any of the
fundamental rights stipulated partially III of the Constitution or the other right/provision
of Constitution. No third ground is available to invalidate any piece of legislation. A
law can't be invalidated on the ground that the Legislature didn't apply its mind or it had
been prompted by some improper motive or it had been arbitrary or unreasonable. In
Shayara Bano v. Union of India,15 the Supreme Court held that Binoy Viswam and some
other cases16 which followed State of M.P. v. Mcdowell & Co17. in which Mcdowell was read
as an absolute bar to the use of arbitrariness as a tool to strike down legislation under Article
14 of the Constitution not good law because Mcdowell was decided per incurriam. But while
the basis of judicial review of legislative acts is far more secure Constitution its potentialities
are much more limited as compared to that in U.S A. Our is due to the detailed provisions of
the Indian Constitution and the easy method this amendment in contradistinction to the
American Constitution's vague and of its phraseology and the rigid method of its amendment.
Thus, under the power of judicial review the highest Court of the Nation can test all pre-
Constitution and post-Constitution or future laws, and declare them unconstitutional in case
they contravene any of n provisions of Part III of the Constitution.

In Kesavananda Bharati's case18 it has been held that Judicial Review is the 'basic features'
of the Indian Constitution and, therefore, it "cannot be damaged or destroyed by amending
the Constitution under Article 368 of the Constitution".

Again, in L. Chandra Kumar v. Union of India,19 the Supreme Court has held that the power
of judicial review of legislative action as vested in the High Court under Article 226 and in

14AIR 2017 SC 2967 pp. 3006, 3007, 3011

15AIR 2017 SC 4609
16State of Bihar v. Bihar Distillery Ltd., AIR 1997 SC 1511: State of M.P. v. Rakesh Kohli, AIR 2012 00 2351.
17
AIR 1996 SC 1627.
18
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461
19
AIR 1997 SC 1125.

11
the Supreme Court under Article 32 is part of the basic structure of the Constitution and
cannot be ousted or excluded even by the constitutional amendment.20

No judicial review in policy matters. In policy matters, the judicial review is justified only if
the policy is arbitrary, unfair or violative Courts must be loathe to venture into an evaluation
of State policy which must be given a reasonable time to pan out. If a policy proves to be
unwise, oppressive or mindless, the electorate has been quick to make the Government aware
of its folly. 21

No judicial review by statutory Tribunal an order passed by the State Government under
Section 18 of the Water (Prevention and Control of Pollution) Act is not a subject-matter of
judicial review by the National Green Tribunal Act, 2010. The Tribunal cannot exercise the
powers of judicial review akin to that of a High Court exercising Constitutional power under
Article 226 of the Constitution.22

6. IMPORTANT DOCTRINE FORMULATED BY COURT’S THROUGH

JUDICIAL INTERPRETATION
Article 13 of constitution incorporates “Judicial Review of Post constitution and Pre-
constitutional laws”. This text inherited most vital doctrines of judicial review like Doctrine
of Severability, Doctrine of Eclipse. Article 13 provides for the “judicial review” of all the
legislations in India, past as well as future. This power has been conferred on the High
Courts and the Supreme Court of India under Art. 226 and 32 which may be declare a law
unconstitutional if it's inconsistent with any of the provisions of part III of the
Constitution. Another doctrines are formulated by courts using the facility of judicial
review are Doctrine of Pith and Substance, Doctrine of Colourable legislation. These
doctrines are originated by Supreme Court by using power of review through interpreting
various Articles. Doctrine of Prospective overruling is that the doctrine to interpret the

20
Kerala Bar Hotels Association v. State of Kerala, AIR 2016 SC 163 at p. 181; Census Commissioner v. R. Krishnamurthy, (2015) 2 SCC
796 referred to.
21
Also See Supreme Court Advocates-on-Record Association v. Union of India, (2015) AIR SCW 5457; Union of India v. S. K. Sharma,
AIR 2015 SC 246; Madras Bar Association v. Union of lIndia, AIR 2015 SC 1571.
22
Tamil Nadu Pollution Control Board v. Sterilo Industries (ID Ltd.. AIR 2019 SC 1074

12
judicial decisions. These doctrines are enumerated through interpret the constitution
provisions by Supreme Court. Judicial review in India is predicated on various dimensions
like judicial review of legislative, executive and judicial acts which are explicitly provided in
doctrines.

7. JUDICIAL REVIEW IN CONSTITUTIONAL AMENDMENTS

In India, constitutional amendments are very rigid in nature. Although Supreme Court of
India is that the guardian of Indian Constitution, therefore Supreme Court time to time
scrutinizes the validity of constitutional amendment laws, parliament has the supreme
power to amend the constitution but cannot abrogate the essential structure of the
constitution. But, there was a conflict between Court and Parliament regarding
Constitutional Amendment that whether fundamental rights are amendable under Art.
368 or not?
The question whether fundamental rights can be amended under Art. 368 came for
consideration of the Supreme Court in Shankari Prasad v. Union of India the first case on
amendability of the constitution the validity of the constitution (1st Amendment) Act, 1951,
curtailing the “Right to Property” guaranteed by Art. 31 was challenge .The argument against
the validity of (1st Amendment) was that Art. 13 prohibits enactment of a law infringing an
abrogating the fundamental rights, that the word ‘law’ in Art 13 would include” any law”,
then a law amending the constitution and therefore, the validity of such a law could be judged
and scrutinized with reference to the fundamental rights which it could not infringe. It was
argued that the “State in Article 12 included Parliament and the word “law” in Art. 13(2),
therefore, must include constitutional amendment””. The Supreme Court, however, rejected
the above argument and held that the power to amend the constitution including the
fundamental rights is contained in Art. 368, and that the word ‘law’ in Art. 13(2) includes
only an ordinary law made in exercise of the legislative powers and does not include
constitutional amendment which is made in exercise of constituent power. Therefore, a
constitutional amendment will be valid even if it abridges or takes any of the fundamental
rights.

Again In 1964 Sajjan Singh v. Rajasthan, the same question was raised when the validity of
the Constitution (Seventeenth Amendment)Act, 1964 was called in question and once again
the court revised its earlier view that constitutional amendments, made under Art. 368 are

13
outside the purview of Judicial Review of the Courts. In this case the Constitution (17th
Amendment) Act, 1964 was challenged an upheld.

After two years, after the decision of Sajjan Singh in 1967 in Golak Nath vs. State of Punjab,
the same question regarding constitutional amendment was raised. In this case the inclusion
of the Punjab Security of Land Tenures Act, 1953 in the Ninth schedule was challenged on
the ground that the Seventeenth Amendment by which it was so included as well as the First
and the Fourth Amendments abridged the fundamental rights were unconstitutional. The
Supreme Court overruled the decision of Shankari Prasad and Sajjan singh’s case. The
Supreme Court observed that “An amendment is a ‘law’ within the meaning of Art. 13(2)
included every kind of law, “statutory as well as constitutional law” and hence a
constitutional amendment which contravened Art. 13(2) will be declared void.” Court further
observed that “The power of Parliament to amend the constitution is derived from Art.245,
read with Entry 97 of list 1 of the Constitution and not from Art.368. Art. 368 only lays down
the procedure for amendment of Constitution. Amendment is a legislative process.”23

The minority view of five out of eleven judges was the word ‘law’ in Art. 13(2) refer to only
ordinary law and not a constitutional amendment and hence Shankari Prasad and Sajjan
Singh case rightly decided. According to them, Art. 368 dealt with only the procedure of
amending the constitution but also contained the power to amend the constitution.24

Once again the Supreme Court was called upon to consider the validity of the Twenty fourth,
Twenty Fifth and Twenty Ninth Amendment in the famous case Keshavananda Bharti vs.
State of kerela25which is additionally referred to as “Fundamental Rights Case”. during
this case the petitioner had challenged the validity of Kerala Land Reforms Act 1963.
But during the pendency of the petition the Kerala Act was amended in 1971 and was
placed within the Ninth Schedule by the Twenty Ninth Amendment Act. The petitioner
was challenged the validity of Twenty Fourth, Twenty Fifth, and Twenty Ninth
Amendment to the Constitution and also the question was involved was on what extent
of the amending power conferred by Art. 368 of the Constitution. The Supreme Court
overruled the Golak Nath’s case and held that” Under Art. 368 Parliament can amend the
fundamental rights but cannot take or abridges the basic Structure of the
23
MP SINGH, V.N. SHUKLA’S CONSTITUTION OF INDIA, ( 11th , Eastern Book Company,2008), 999
24
DR. J.N. PANDEY, The Constitutional Law Of India,( 49th , Central Law Agency ,Allahabad,2012)
25
[ 1973]AIR 1461( SC)

14
Constitution”. According to this judgment of largest bench within the constitutional
history propounded the “Theory Of Basic Structure: A Limitation on Amending Power.”

This theory formulated By Supreme court through Doctrine of judicial review. In Indira
Nehru Gandhi vs. Raj Narayan26, the amendment was made to validate with retrospective
effect the election of the then Prime Minister which was set aside by the Allahabad high
court. The Supreme Court struck down clause (4) of Art.329-A which was the offending
clause an inserted in (39th Amendment) to validate the election with retrospective effect.
Khanna .J. struck down the clause on the ground that “it violated the free and fair
elections which was an important postulate of democracy which successively was a basic
structure of the constitution”.

In Minerva Mills vs. Union of India,27the petition was filed within the Supreme Court
challenging the taking up of the management of the mill under the Silk Textile
undertaking (Nationalisation) Act, 1974, and an order made under S. 18-A of the
industrial (Development and Regulation) Act, 1951. The petition challenged the
constitutional validity of clauses (4) and (5) of Art. 368, introduced by Sec.55 of 42nd
Amendment. If these clauses were valid then petitioner couldn't challenge the validity of
the 39th Amendment which had placed the Nationalization Act, 1974, within the IX
schedule.

S. 55 of the Constitution (42nd Amendment) Act, 1976 inserted sub-sections (40 and (5)
in Art. 368. The Supreme Court struck down clauses (4) and (5) of Art. 368 inserted by
the 42nd Amendment on the bottom that these clauses destroyed the basic feature of the
basic structure of the Constitution. Limited amending power may be a basic feature of
Constitution and these clauses removed all limitations on the amending power and
thereby conferred a vast amending power, and it had been destructive of the
basic feature of the Constitution.”

Through these cases Supreme Court scrutinize the validity of constitutional Amendment
Law by using the Doctrine of judicial review. By scrutinizing the judicial decisions
Supreme Court also interpreting the various provisions like Article 13and 368 and

26
[ 1980] AIR 1789(SC)
27
[ 1975] AIR 2299(SC)

15
also make sure the Supremacy of the Constitution which the basic feature of the
Constitution.

8. CONCLUSION
All the above discussion it's clear that there's no strict judicial review and it is difficult to
determine that because all the organs of the government are interrelated about their
works, activities. Such as executive associated with the legislature but we should
always maintain fairness regarding our works and officials are accountable to an
authority. On the opposite hand judicial review powers also are problematic
because we've already seen that if every power are in one hand that absolute power also
creates problem that time abuse of power occur during this circumstances check and
balances system is acceptable. While the doctrine of the judicial review powers and its
practice won't necessarily be an equivalent thing, the aim behind the doctrine is
often seen to be embedded in democracies. Within the Westminster system, as practiced
in Australia, discussion of the doctrine is riddled with exceptions and variations.
Certainly, in its classical form it exists here only partially at best; but in practice
mechanisms for avoiding the over concentration of power exist in some ways , through
constitutions and conventions; the bicameral system; multiple political parties; elections;
the media; courts and tribunals; the federal system itself; and therefore the active,
ongoing participation of citizens. The doctrine is a component of a simultaneously robust
and delicate constant interplay between the arms of state. A tension between separation
and concentration of powers will always exist, and therefore the greatest danger will
always roll in the hay the executive aren't judges or legislatures, because within
the executive lies the best potential and practice for power and for its corruption.
Preventing this in our system relies the maximum amount upon conventions as
constitutions and therefore the alarm bells should ring loudly when government leaders
dismiss or profess ignorance of the concept, and it's not taken by our political leaders
easily and not appreciate the separation. Theoretically separation could also be intact,
but practically we follow others countries policies like fusion of powers, checks and
balances or mixed separation of powers which will be more effective for the lifetime
of judicial review power theory. There are not any short cuts but strategies are
often conceived to facilitate the reform process and overcome obstacles. Needless to

16
mention, the judiciary cannot do that alone. The opposite branches of state and therefore
the people generally must all support and cooperate to hasten the accomplishment of this
long - cherished goal. it's important to inculcate this state of mind within the members of
the judiciary in order that they will contribute without worrying or favour in avoiding
accusations of incompetence, corruption, or court mismanagement among judges.
In conclusion, it's evident that governments in their actual operation don't choose the
strict separation of powers because it's undesirable and impracticable, however,
implications of this idea are often seen in most the countries in its diluted form. The
discrepancies between the plan and practice, if any, are supported these very grounds
that the perfect plan is impractical for everyday use. Otherwise, the doctrine is itself a
neighbourhood of the founding structure of the Constitution of all democratic nations.
Whether in its theoretical conception or its practical usage, the Doctrine of judicial
review powers is important for the effective functioning of a democracy.

17