Judiciary’s power to review a constitutional amendment

Judiciary’s power to review a constitutional amendment

Subject :Polity

Context: Vice-President questions judiciary’s power to ‘undo’ a Constitutional amendment passed unanimously by Parliament

Concept:

Powers and limitation of constitutional amendment by Parliament

• Article 368 in Part XX of the Constitution deals with the power of parliament to amend the constitution and its procedures.It states that the Parliament may amend the Constitution by way of addition, variation or repeal of any provision in accordance with the procedure laid down for the purpose.
• 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.

Constitutional provisions that empower Judiciary to review the laws and amendments by Parliament

Judicial review

• Judicial Review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
• Judicial review has two vital functions, namely: making the actions of the government legitimate, andTo secure the Constitution from any undue encroachment by the government.

Constitutional provisions 

• 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.
• Under Article 143, A constitution bench consists of at least five or more judges of the court which is set up to decide substantial questions of law with regard to the interpretation of the constitution in a case.
• Article 226 Certifies the high courts with the power of judicial review and to issue directions or orders or writs for the enforcement of fundamental rights or other objectives.
• Thus both the SC and HCs have the jurisdiction to question the validity of a constitutional amendment or a central law

Basic structure doctrine 

• The executive vs judiciary manoeuvres displayed in the amendments ended with the KesavanandaBharati case, in which the court had to settle these issues by the Basic structure doctrine .
• In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament.
• The doctrine of ‘basic Structure’ has enabled the application of judicial review to Constitutional amendments involving Fundamental Rights also.
• This doctrine evolved in Kesavananda Bharati case, 1973. Parlaiment Can amend the constitution Under Article 368 but Such amendments Should not take away or violate Fundamental Rights and any law made in contravention with this rule Shall be void (Article 13).
• The court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
• The origins of the basic structure doctrine are found in the German Constitution .The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes. Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
• The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the basic structure of the Constitution.
• The judicial review power of the judiciary is indeed a Basic structure of the Constitution and hence cannot be amended to take away the power from the judiciary