Judicial Review means the power of the courts
to declare a law made by legislature beyond the
powers given to it by the Constitution as ultravires
of the Constitution and hence void. Judicial review
is a powerful weapon to restrain any
unconstitutional exercise of power by the
Legislature and the Executive. The only check on
the exercise of power by the judiciary, however,is the self-imposed discipline of judicial restraint.
The doctrine of judicial review does not permit the
court to direct or advise the executive in matters
of policy or to sermonize vis-à-vis any matter
which under the Constitution lies within the
sphere of Legislature or the Executive, provided
those authorities do no transgresses their
constitutional limits or statutory powers.
Judicial Review in India
The phrase "judicial review" is not anywhere
used in the Indian Constitution. But, the framers
of Indian Constitution intended this power to be
exercised by the courts while interpreting any law
passed by the Parliament or State-legislatures.
Till 1967 the Supreme Court had exercised the
power of judicial review with restraint. But in
sGolaknath case, 1967, the Supreme Court
overruled previous decisions and declared that the
Parliament could not amend the Constitution to
take away or abridge any of the Fundamental
Rights. This decision resulted in a public
controversy over the sovereignty of Parliament.
Then, came two other judgments of the Supreme
Court - the Bank Nationalization case and the
Privy Purses case. These cases also questioned the
supremacy of the parliament. Soon thereafter in
a newly elected Lok Sabha following the 1971
elections, the Parliament passed 24th , 25th and
26th constitution Amendment bills to neutralise
the effect of the three above-mentioned Supreme
Court judgments. In the famous Keshavanand
Bharati Case, 1973, the Supreme Court reversed
the Golaknath Case ruling and upheld Parliament's
right to amend the Constitution including the
Fundamental Rights, but not the 'basic structure
or framework' of the Constitution. The Supreme
Court holds the view that the Parliament is not
omnipotent to change the basic structure of the
Constitution.
Impact of the 42nd Amendment
The 42nd Amendment enacted during the
Emergency made far-reaching changes to curtail
the powers of the courts and to make the Parliament
sovereign. Firstly, the 42nd Amendment stated
that no amendment to the Constitution could be
questioned in a Court of Law. And "for the
removal of the doubts, it is hereby declared that
there shall be no limitation what ever on theconstituent power of Parliament to amend by way
of addition, variation or repeal the provisions of
this constitution." In this manner, through this
Amendment the Supreme Court's power to judicial
review of constitutional amendments was taken
away to establish the complete and total
sovereignty of Parliament. The Amendment stated
that:
(a) A High Court cannot pronounce invalid any
Central law,
(b) The Supreme Court shall not pronounce a
State law as unconstitutional unless a Central
law has also been challenged.
Further, the minimum number of judges of the
Supreme Court who shall sit to determine the
constitutional validity of any Central or State law
shall be seven and in the case of High Court, five.
It was also stated that a majority of not less than
two- thirds of the judges hearing such a case must
agree before a law is declared invalid. But after
this the 43rd Amendment was passed which
restored the pre-emergency position of the Supreme
Court's power of judicial review over laws passed
by state legislatures and Parliament. As far as
Parliament's sovereignty with regard to amending
the Constitution is concerned, there is no change.
The power of Parliament to amend the Constitution
exists as under the 42nd Amendment, however
the judgment of the Supreme Court in the Minerva
Mills case in May 1980 was a setback to the
position of unlimited powers claimed by the
Parliament to amend any part of Constitution.
This judgment recognized only limited powers of
the Parliament to amend the Constitution without
altering the basic structure.
