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Introduction:
Two prominent constitutional functionaries recently expressed
their concern over the role played by the Indian Judiciary.
The
dividing line between judicial activism and overreach is a thin
one, ... a takeover of the functions of another organ may, at
times, become a case of overreach, said the Prime Minister Dr. Manmohan Singh while the Lok Sabha Speaker Somnath Chatterji
maintained, Judiciary is not an overriding authority and no organ
has the right to emphasize powers of another, These assertions
have, in the wake of several apex court rulings, striking down
executive decisions and parliamentary legislations- the latest
being the constitutional validity of Schedule Nine and the stay on
implementing 27 percent quota for backward class students,
encouraged another round of discussion as regards judicial review
under the Constitution.
2 The success
of a democracy, especially one based on a federal system, depends
largely on an impartial and independent judiciary endowed with
sufficient powers to administer justice. The framers of the Indian
Constitution, therefore, thought it fit to entrust the judiciary
with vast powers. The trinity of an independent judiciary,
independent constitutional review, and the supremacy of law
operate together for the working of a constitutional government.
3 The Indian
Constitution explicitly establishes the doctrine of judicial
review in several Articles such as Arts.13, 32, 131 to 136, 143,
226 and 246. In fact, the study of constitutional law may be
described as a study of the doctrine of judicial review in action
The courts have power to strike down any law, if they believe it
to be unconstitutional. However, the research and statistics
reveal that our courts have not been trigger happy in striking
down laws and on the contrary legislations especially
socio-economic legislations have generally been upheld. In the
words of Fazl Ali, J.
?the
presumption is always in favour of the constitutionality of an
enactment, and the burden is upon him who attacks it to show that
there has been a clear transgression of the constitutional
principles.
4 The
Constitution being a living document its provisions must be
construed having regard to the march of time and the development
of law. Initially, be it
Shankari Prasad
or
Sajjan Singh
or
A.K.Gopalan, the courts in India adopted an approach of literal
and narrow interpretation. However, in course of time, this
judicial positivism has transformed into judicial activism.
5 The decision
in the Maneka Gandhi and the post-Emergency judicial activism has
inspired a philosophy of constitutional interpretation, treating
the Constitution not as a mere index of rules but as assertion of
the principles of constitutionalism. Similarly, the doctrine of
basic structure evolved in Keshavananda Bharati, its effect,
impact and working having been examined in Indira Gandhi's
(election case) , Waman Rao's, Minerva Mills and I.R. Coelho cases
are all milestones for the affirmation of judicial review in
Indian constitutional jurisprudence. The assertion that, ?the
Supreme Court has been assigned the role of a sentinel on the
quinine for the protection of the fundamental rights? is certainly
a tribute to the role played by the judiciary in India. Arts. 14,
19 and 21 represent the foundational values which form the basis
of judicial review apart from the rule of law and separation of
powers,
6 Is it then
permissible
for Parliament to immunize legislations from fundamental rights by
inserting them into the Ninth Schedule and, if so, what is its
effect on the power of judicial review of the Court
7 Art.31B and
the Ninth Schedule were added to the
Constitution by the First Amendment Act 1951. The sole objective
of the
exercise is to assist the State to bring about agrarian reforms
providing for economic justice; and immunize certain acts and
regulations from a challenge on the ground of violation of
fundamental
rights. In effect, this measure has deprived the courts of the
power to
scrutinize the validity of such enactments. The Supreme Court by a
majority upheld the amendment in the Shankari Prasad case.
However, what
was thought to be some exception to the enforcement of Fundamental
Rights became an unchecked and rampant exercise of the power, the
number
of enactments inserted in the Ninth Schedule having gone up from
13 to
284. The exercise of such power means the absence of full power of
judicial review so as to determine the constitutional validity of
such
an exercise. Does not such a step offend the doctrine of basic
structure
of the constitution, propounded in the
Keshavananda Bharati
8 The judgment in I.R. Coelho v. the State of Tamil
Nadu has answered this question by establishing the pre-eminence
of
judicial review of each and every part of the Constitution. The
Court
has laid down a two-fold test: (a) whether an amendment or a law
is
violative of any of the Fundamental Rights in Part III
(b) if so,
whether the violation found is destructive of the basic structure
of the Constitution.
If the court
finds that the impugned enactment damages the basic structure of
the Constitution, it shall be declared void, notwithstanding the
fictional immunity given to it by Article 31B.Thus, the basic
structure doctrine requires the State to justify the degree of
invasion of Fundamental Rights in every given case; and this is
where the court's power of judicial review comes in.
9 The power of judicial review, being "the very soul of
the Constitution," is certainly a delicate exercise. Except in
Article
363, the Constitution has not envisaged imposition of any
jurisdictional
embargo on the Supreme Court; and this is sufficient enough to
identify
the depth and width or extent of its powers (P.Ramachandra Rao Vs
State
of Karnataka, (2002) 4 SCC 578). It is for this very reason that
the Court has to function within the established parameters and
constitutional bounds. The judiciary entertaining Public Interest
Litigation leading to ?judicial activism? has of late been
conceived as problem area. As judicial activism and judicial
restraint are the two sides of the same coin, efforts must be made
to see that the former does not lead to
judicial
adventurism.
10 The
judiciary should act as a catalyst only to expedite the process of
eliminating executive inertia, but without itself involving in the
actual administrative process. In the circumstances, some degree
of
tension is natural and to some
extent
desirable, as pointed by Chief Justice K.G.Balakrishnan. However,
friction can be avoided if each organ of the state correctly
understands
and respects the constitutional functions of the other.
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Bibliography
1. Judicial challenge by Sri V.Venkateshan
2. Reclaiming jurisdiction, Editorials the Hindu
3. Verdict on Ninth Schedule, Paramountcy of judicial review
established, Fali S.
Nariman, Senior Advocate, Supreme Court.
4. A Case Study' of the 9th Schedule Case, Lecture delivered on
9th
Feb., 2007,
By Justice Sunil Ambwani, Judge Allahabad High Court, Allahabad
5. Ninth Schedule can't help- Evading judicial scrutiny not
possible,
Subhash C.
Kashyap, Former Secretary; General, Lok Sabha
6. A Tribune debate:
Parliament
can't misuse 9th Schedule by
P.P.
Rao, Senior .Advocate, Supreme Court of India.
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In defence of judicial review
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The
author can be reached at: srikanth_7@legalserviceindia.com /
