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the Constitution, the power of judicial review has also to be
exercised with a view to see that the guarantees afforded by these
Rights are not contravened”.4
“The Constitution is supreme lex, the permanent law of the
land, and there is no branch of government above it. Every organ
of government, be it the executive or the legislature of the
judiciary, derives its authority from the Constitution and it has to
act within the limits of its authority. No one however highly placed
and no authority howsoever lofty, can claim that it shall be the sole
judge of the extent of its power under the Constitution or whether
its action is within the confines of such power laid down by the
constitution. This Court is the ultimate interpreter of the
Constitution and to this Court is assigned the delicate task of
determining what is the power conferred on each branch of
government, whether it is limited, and if so, what are the limits and
whether any action of that branch transgresses such limits”.5
“It is the function of the Judges, may their duty, to pronounce
upon the validity of laws. If courts are totally deprived of that
power, the Fundamental Rights conferred on the people will
become a mere adornment because rights without remedies are
as writ in water. A controlled Constitution will then become
uncontrolled”.6
“The judges of the Supreme Court have been entrusted with
the task of upholding the Constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure
that the balance of power envisaged by the Constitution is
maintained and that the legislature and the executive do not, in
the discharge of their functions, transgress constitutional
limitations”7 .
“The founding fathers very wisely, therefore, incorporated in the
Constitution itself the provisions of judicial review so as to
maintain the balance of federalism, to protect the Fundamental
Rights and Fundamental Freedoms guaranteed to the citizens and
to afford a useful weapon for availability, availment and enjoyment
of equality, liberty and Fundamental Freedoms and to help to
create a healthy nationalism. The function of judicial review is a
CONSTITUTIONAL PROVISIONS FOR JUDICIAL
REVIEW
Though the phrase ‘Judicial Review’ has nowhere been used in
the Constitution, the provisions of several Articles explicitly confer
the power of judicial review on the Supreme Court and the High
Courts. These provisions are explained below:
1. Article 13 declares that all laws that are inconsistent with or
in derogation of the Fundamental Rights shall be null and
void.
2. Article 32 guarantees the right to move the Supreme Court
for the enforcement of the Fundamental Rights and
empowers the Supreme Court to issue directions or orders
or writs for that purpose.
3. Article 131 provides for the original jurisdiction of the
Supreme Court in centre-state and inter-state disputes.
4. Article 132 provides for the appellate jurisdiction of the
Supreme Court in constitutional cases.
5. Article 133 provides for the appellate jurisdiction of the
Supreme Court in civil cases.
6. Article 134 provides for the appellate jurisdiction of the
Supreme Court in criminal cases.
7. Article 134-A deals with the certificate for appeal to the
Supreme Court from the High Courts.9
8. Article 135 empowers the Supreme Court to exercise the
jurisdiction and powers of the Federal Court under any
preconstitution law.
9. Article 136 authorises the Supreme Court to grant special
leave to appeal from any court or tribunal (except military
tribunal and court martial).
10. Article 143 authorises the President to seek the opinion of
the Supreme Court on any question of law or fact and on
any pre-constitution legal matters.
11. Article 226 empowers the High Courts to issue directions or
12. Article 227 vests in the High Courts the power of
superintendence over all courts and tribunals within their
respective territorial jurisdictions (except military courts or
tribunals).
13. Article 245 deals with the territorial extent of laws made by
Parliament and by the Legislatures of States.
14. Article 246 deals with the subject matter of laws made by
Parliament and by the Legislatures of States (i.e., Union List,
State List and Concurrent List).
15. Articles 251 and 254 provide that in case of a conflict
between the central law and state law, the central law
prevails over the state law and the state law shall be void.
SCOPE OF JUDICIAL REVIEW
The constitutional validity of a legislative enactment or an
executive order can be challenged in the Supreme Court or in the
High Courts on the following three grounds.
(a) it infringes the Fundamental Rights (Part III),
(b) it is outside the competence of the authority which has
framed it, and
(c) it is repugnant to the constitutional provisions.
From the above, it is clear that the scope of judicial review in
India is narrower than what exists in the USA, though the
American Constitution does not explicitly mention the concept of
judicial review in any of its provisions. This is because, the
American Constitution provides for ‘due process of law’ against
that of ‘procedure established by law’ which is contained in the
Indian Constitution. The difference between the two is: “The due
process of law gives wide scope to the Supreme Court to grant
protection to the rights of its citizens. It can declare laws violative
of these rights void not only on substantive grounds of being
unlawful, but also on procedural grounds of being unreasonable.
Our Supreme Court, while determining the constitutionality of a
law, however examines only the substantive question i.e., whether
the law is within the powers of the authority concerned or not. It is
not expected to go into the question of its reasonableness,
suitability or policy implications”.10
The exercise of wide power of judicial review by the American
Supreme Court in the name of ‘due process of law’ clause has
made the critics to describe it as a ‘third chamber’ of the
Legislature, a super-legislature, the arbiter of social policy and so
on. This American principle of judicial supremacy is also
recognised in our constitutional system, but to a limited extent.
Nor do we fully follow the British Principle of parliamentary
supremacy. There are many limitations on the sovereignty of
Parliament in our country, like the written character of the
Constitution, the federalism with division of powers, the
Fundamental Rights and the judicial review. In effect, what exists
in India is a synthesis of both, that is, the American principle of
JUDICIAL REVIEW OF THE NINTH SCHEDULE
Article 31B saves the acts and regulations included in the Ninth
Schedule from being challenged and invalidated on the ground of
contravention of any of the Fundamental Rights. Article 31B along
with the Ninth Schedule was added by the 1st Constitutional
Amendment Act of 1951.
Originally (in 1951), the Ninth Schedule contained only 13 acts
and regulations but at present (in 2016) their number is 282.11 Of
these, the acts and regulations of the state legislature deal with
land reforms and abolition of the zamindari system and that of the
Parliament deal with other matters.
However, in a significant judgement delivered in I.R. Coelho
case (2007)12 , the Supreme Court ruled that there could not be
any blanket immunity from judicial review of laws included in the
Ninth Schedule. The court held that judicial review is a ‘basic
feature’ of the constitution and it could not be taken away by
putting a law under the Ninth Schedule. It said that the laws
placed under the Ninth Schedule after April 24, 1973, are open to
challenge in court if they violated Fundamental Rights guaranteed
under the Articles 14, 15, 19 and 21 or the ‘basic structure’ of the
Constitution. It was on April 24, 1973, that the Supreme Court first
propounded the doctrine of ‘basic structure’ or ‘basic features’ of
the constitution in its landmark verdict in the Kesavananda Bharati
case.13
While delivering the above judgement, the Supreme Court
made the following conclusions:
1. A law that abrogates or abridges rights guaranteed by Part
III of the Constitution may violate the basic structure
doctrine, or it may not. If former is the consequence of law,
whether by an amendment of any Article of Part III or by an
insertion in the Ninth Schedule, such law will have to be
invalidated in the exercise of judicial review power of the
Court. The constitutional validity of the Ninth Schedule laws
on the touchstone of basic structure doctrine can be
adjudged by applying the direct impact and effect test, i.e.,
rights test, which means the form of an amendment is not
the relevant factor, but the consequence thereof would be
the determinative factor.
2. The majority judgement in the Kesavanand Bharati Case14
read with Indira Gandhi case15 requires the validity of each
new constitutional Amendment to be judged on its own
merits. The actual effect and impact of the law on the rights
guaranteed under Part III has to be taken into account for
determining whether or not it destroys basic structure. The
impact test would determine the validity of the challenge.
3. All amendments to the Constitution made on or after 24th
April, 1973 by which the Ninth Schedule is amended by
inclusion of various laws therein shall have to be tested on
the touchstone of the basic or essential features of the
Constitution as reflected in Article 21 read with Articles 14
and 19 and the principles underlying them. To put it
differently, even though an act is put in the Ninth Schedule
by a Constitutional Amendment, its provisions would be
open to attack on the ground that they destroy or damage
the basic structure if the Fundamental Right or rights taken
away or abrogated pertains or pertain to the basic structure.
4. Justification for conferring protection, not blanket protection,
on the laws included in the Ninth Schedule by Constitutional
Amendments shall be a matter of constitutional adjudication
by examining the nature and extent of infraction of a
Fundamental Right by a statute, sought to be constitutionally
protected, and on the touchstone of the basic structure
doctrine as reflected in Article 21 read with Articles 14 and
19 by application of the “rights test” and the “essence of the
right” test taking the synoptic view of the articles in Part III as
held in the Indira Gandhi Case.16 Applying the above test to
the Ninth Schedule laws, if the infraction affects the basic
structure, then such a law or laws will not get the protection
of the Ninth Schedule. When the triangle of Article 21 read
with Article 14 and Article 19 is sought to be eliminated not
only the “essence of the right” test but also the “rights test”
has to apply. There is also a difference between the “rights
controlled constitution conferring limited power of
amendment, an entire chapter is made in applicable, the
“essence of the right” test as applied in Nagaraj case17 will
have no applicability. In such a situation, to judge the validity
of the law, it is the “rights test” which is more appropriate.
5. If the validity of any Ninth Schedule law has already been
upheld by this Court, it would not be open to challenge such
law again on the principles declared by this judgment.
However, if a law held to be violative of any rights in Part III
is subsequently incorporated in the Ninth Schedule after 24th
April, 1973, such a violation / infraction shall be open to
challenge on the ground that it destroys or damages the
basic structure as indicated in Article 21 read with Articles 14
and 19 and the principles underlying them.
6. Action taken and transactions finalized as a result of the
impugned Acts shall not be open to challenge.
The number of acts and regulations included in the Ninth
Schedule before and after April 24, 1973 are mentioned below in
Table 27.1.
Table 27.1 Number of Acts and Regulations Included in the Ninth
Schedule
Serial Amendment Number Number of Acts
Number (Year) and Regulations
Included in the
Ninth Schedule
I. Included Before April 24, 1973
1. First Amendment (1951) 13 (1 to 13)
2. Fourth Amendment (1955) 7 (14 to 20)
3. Seventh Amendment (1964) 44 (21 to 64)
4. Twenty-Ninth Amendment 2 (65 to 66)
(1972)
II. Included After April 24, 1973
5. Thirty-Fourth Amendment 20 (67 to 86)
6. Thirty-Ninth Amendment 38 (87 to 124)
(1975)
7. Fortieth Amendment (1976) 64 (125 to 188)
8. Forty-Seventh Amendment 14 (189 to 202)
(1984)
9. Sixty-Sixth Amendment 55 (203 to 257)
(1990)
10. Seventy-Sixth Amendment 1 (257A)
(1994)
11. Seventy-Eighth Amendment 27 (258 to 284)
(1995)
Note: Entries 87, 92 and 130 have been omitted by the Forty-
Fourth Amendment (1978).
NOTES AND REFERENCES
1. Justice Syed Shah Mohamed Quadri, “Judicial Review
of Administrative Action”, 2001, 6 SCC (J), p. 3.
2. Chief Justice Kania in A.K. Gopalan v. State of Madras
(1950).
3. Chief Justice Patanjali Shastri in State of Madras v. V.G.
Row (1952).
4. Justice Khanna in Kesavananda Bharati v. State of
Kerala (1973).
5. Justice Bhagwati in Rajasthan v. Union of India (1977).
6. Chief Justice Chandrachud in Minerva Mills v. Union of
India (1980).
7. Chief Justice Ahmadi in L. Chandra Kumar v. Union of
India (1997).
8. Justice Ramaswami in S.S. Bola v. B.D. Sharma (1997).
9. This provision was added by the 44th Constitutional
Amendment Act of 1978.
11. Though the last entry is numbered 284, the actual total
number is 282. This is because, the three entries (87,
92 and 130) have been deleted and one entry is
numbered as 257A.
12. I.R. Coelho v. State of Tamil Nadu (2007).
13. Kesavananda Bharati v. State of Kerala (1973).
14. Ibid.
15. Indira Nehru Gandhi v. Raj Narain (1975).
16. Ibid.
28 Judicial Activism
T
he concept of judicial activism originated and developed in
the USA. This term was first coined in 1947 by Arthur
Schlesinger Jr., an American historian and educator.1
In India, the doctrine of judicial activism was introduced in mid-
1970s. Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O.
Chinnappa Reddy and Justice D.A. Desai laid the foundations of
judicial activism in the country.
MEANING OF JUDICIAL ACTIVISM
Judicial activism denotes the proactive role played by the judiciary
in the protection of the rights of citizens and in the promotion of
justice in the society. In other words, it implies the assertive role
played by the judiciary to force the other two organs of the
government (legislature and executive) to discharge their
constitutional duties.
Judicial activism is also known as “judicial dynamism”. It is the
antithesis of “judicial restraint”, which means the self-control
exercised by the judiciary.
Judicial activism is defined in the following way:
1. “Judicial activism is a way of exercising judicial power that
motivates judges to depart from normally practised strict
adherence to judicial precedent in favour of progressive and
new social policies. It is commonly marked by decision
calling for social engineering, and occasionally these
decisions represent intrusion in the legislative and executive
matters”.2
2. “Judicial activism is the practice in the judiciary of protecting
or expanding individual rights through decisions that depart
from established precedent, or are independent of, or in
opposition to supposed constitutional or legislation intent”.3
3. “Judicial activism can be defined as the process of law-
making by judges. It means an active interpretation of
existing legislation by a judge, made with a view to enhance
the utility of that legislation for social betterment. Judicial
activism is different from judicial pessimism which means
interpretation of existing provisions of law, without an
attempt to enhance its beneficial aspects”.3a
4. “Judicial activism is a philosophy of judicial decision-making