Judicial Review 1x Sch

7/29/2019 Judicial Review 1x Sch

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JUDICIAL REVIEW OF LEGISLATIONS

INCLUDED IN THE NINTH SCHEDULE

INTRODUCTION

The limit of the power of judicial review is a recurring theme in the evolution of our

constitutional jurisprudence. In some of its celebrated judgements, the apex court has defined the

contours of sovereign power as distributed amongst the three branches of government - the

legislature, the executive and the judiciary.

In recent days, the debate has been brought into sharper focus following views expressed

by scholars, parliamentarians and judges on the question of reservations for the OBCs in

educational institutions[1]

.

The Indian Constitution which embodies republican aspirations propounds the

philosophy of separation of powers emanating from a distrust of concentration of power in any

one organ of the state. Within their defined spheres and subject to express limitations including

those sanctified by the hallowed conventions of the Constitution, each branch of government has

a wide range of freedom to act.

The question then is: Can the will of the people reflected in the passage of a unanimously

approved parliamentary enactment be questioned by the Supreme Court in the absence of any

doubt as to Parliaments legislative competence to pass the law? Also, can the judicial power of

review of legislation be exercised to usurp Parliaments primacy in its lawmaking function?

On the other hand, there is a compelling argument, i.e. that the power of judicial review

entrusted to our superior courts in various provisions of the Constitution itself is as much by the

command of the people. Defenders of this view argue that judicial scrutiny of the validity of

legislation is a necessary protection against the oppression of transient majorities, that the judges

do not check the people, the Constitution does and since the Constitution itself is popularly

ratified, there is nothing undemocratic in the power of judicial review.

Chief Justice Marshalls reminder that when courts invalidate as unconstitutional an act

of a legislative body they do so by the command of the people (Marbury Vs. Madison) remains

the much-invoked basis of judicial power. The justification of judicial review articulated by the

American statesman Alexander Hamilton, finds its echo in the current debate.

____________________________

1. Jain, MP, Indian Constitutional Law, 5th Ed. (Rep.) 2006, Wadhwa & Co.


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Unanimity or consensus in legislation as the sole basis of a coherent moral vision binding

on all, it is argued, is to be rejected in the face of explicit constitutional limitations which are

intended to serve as a bulwark against temporary majorities, particularly, when written

constitutions seek to harmonize the principle of popular choice with inherent rights.

All these points were dealt in detail recently by a nine judge bench in the case of I RCoelho (Dead) by LRs Vs. State of Tamil Nadu and Others

[2]. And this project aims to

discuss the different points of view and the final position in this regard after the said judgement.

HISTORICAL BACKGROUND OF THE NINTH SCHEDULE

After independence, zamindari abolition and land reforms laws were passed as a move

towards more egalitarian society, but the Government efforts of social engineering faced several

problems, the land legislations were challenged in the courts. The first case challenging the land

law was Kameshwar Singh V State of Bihar, in this case the Bihar Land Reforms Act 1950 was

challenged on the ground that the classification of zamindars made for the purpose for givingcompensation was discriminatory and denied equal protection of laws guaranteed to the citizen

under Article 14 of the Constitution. The Patna High Court held this piece of legislation as

violative of Article 14 as it classified the zamindars for the purpose of payments of compensation

in a discriminatory manner. As a result of these judicial pronouncements, the Government got

apprehensive that the whole agrarian reform programmes would be endangered. To ensure that

agrarian reform legislation did not run into heavy weather, the legislature amended the

Constitution in the year 1951 which inserted Ninth Schedule.

Article 31-B[3]

was inserted by the First Constitutional (Amendment) Act 1951 Thus

Article 31-B of the Constitution of India ensured that any law in the Ninth Schedule could not bechallenged in courts and Government can rationalize its programme of social engineering by

reforming land and agrarian laws. In other words laws under Ninth Schedule are beyond the

purview of judicial review even though they violate fundamental rights enshrined under part III

of the Constitution. On the one hand considerable power was given to legislature under Article

31-B and on the other hand the power of judiciary was curtailed, this is the starting point of

tussle between legislature and judiciary.

____________________________

2. AIR 2007 SC 8613. Article 31B: (Without prejudice to the generality of the provisions contained in Article 31A), none of the

Acts and Regulations specified in the ninth Schedule nor any of the provisions thereof shall be deemed to

be void, or ever to have become void, on the grounds that such Act, Regulation or provision is inconsistent

with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and

notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts

and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in

force.


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The other feature of Article 31-B is that it is retrospective in nature that is when a statute

is declared unconstitutional by a court and later it is included in the Ninth Schedule, it is to be

considered as having been in that Schedule from its commencement. Thus it provides blanket

protection to all laws under the Schedule. In case ofJeejeebhoy V Asst. Collector, Thane, the

Supreme Court held that Article 31-B represents novel, innovative and drastic technique of

amendment. Legislative enactments are incorporated into the Constitution and immunized

against all attacks on the grounds of breach of any of the Fundamental Rights. Since 1951, the

Ninth Schedule has been expanded constantly so much that today 284 Acts are included therein.

By the First Constitution (Amendment) Act, 1951 13 laws were added to the Ninth Schedule. It

was again amended by Fourth Constitutional (Amendment) Act and six more Acts were added.

By the 17th Amendment Act 44 laws were added. The Constitution 29th (Amendment) Act,

1972 added 20 more laws. In 1975, the Constitution 39th (Amendment) Act added 38 more laws.

In 1976, the Constitution 42nd (amendment) Act further added 64 laws to the Ninth Schedule.

The 47th Constitutional Amendment, 1984 added more laws and the number of Acts in the Ninth

Schedule rose to 202. Again in 1990 the 66th Amendment Act inserted 55 Land Reforms Actsinto the Schedule. The Constitutional 76th (Amendment) Acts 1994 has been passed by the

Parliament to accommodate Tamil Nadu Government's Legislation in the Ninth Schedule to take

the legislation out of the ambit of the judicial review, which provided 69 percent reservation for

backward classes. The Constitutional 78th (Amendment) Act 1995 again amended the Ninth

Schedule and added 27 Land Reforms Laws, taking the total number of Acts to 284.

The rationale for Article 31-B and the Ninth Schedule was to protect legislation dealing

with property rights and not any other type of legislation. But, in practice, Article 31-B has been

used to invoke protection for many laws not concerned with property rights in anyway. Article

31-B is thus being used beyond the socioeconomic purpose for which it was enacted.

AMENDMENTS TO CONSTITUTION- A SCENARIO AFTER

KESHVANAND[4]

A.DOCTRINE OF BASIC STRUCTUREThe doctrine of basic structure of the Constitution refers, as its name suggests, to those

fundamental, crucial and inalienable principles that form its very crux and are the foundation on

which it has been erected. This basic structure doctrine was reiterated and infact, reinforced, in

the landmark judgment of Keshavananda Bharti[5]

.

_____________________________

4. AIR 1973 SC 14615. Durga Das Basu, Adminsitrative Law, 5th edn., Kamal Law House, Calcutta(1998).


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The 13-judge bench in this case termed Part III of the Constitution as a basic feature, and held

that the Parliament had no constituent authority to amend or abridge it.

The question examined in Waman Rao and Ors. v. Union of India and Ors[6]

. Was whether

the device of Article 31B could be used to immunize Ninth Schedule laws from judicial review

by making the entire Part III inapplicable to such laws and whether such a power wasincompatible with basic structure doctrine. The answer was in affirmative. It has been said that it

is likely to make the controlled Constitution uncontrolled. It would render doctrine of basic

structure redundant. It would remove the golden triangle of Article 21 read with Article 14 and

Article 19 in its entirety for examining the validity of Ninth Schedule laws as it makes the entire

Part III inapplicable at the will of the Parliament. This results in the change of the identity of the

Constitution which brings about incompatibility not only with the doctrine of basic structure but

also with the very existence of limited power of amending the Constitution.

The object behind Article 31B is to remove difficulties and not to obliterate Part III in its entirety

or judicial review. The doctrine of basic structure is propounded to save the basic features.Article 21 is the heart of the Constitution. It confers right to life as well as right to choose. When

this triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only

the 'essence of right' test but also the 'rights test' has to apply, particularly when Keshavananda

Bharti and Indira Gandhi case[7]

have expanded the scope of basic structure to cover even some

of the Fundamental Rights.

The constitutional amendments are subject to limitations and if the question of limitation is to be

decided by the Parliament itself which enacts the impugned amendments and gives that law a

complete immunity, it would disturb the checks and balances in the Constitution. The authority

to enact law and decide the legality of the limitations cannot vest in one organ. The validity tothe limitation on the rights in Part III can only be examined by another independent organ,

namely, the judiciary. The power to grant absolute immunity at will is not compatible with basic

structure doctrine and, therefore, after 24th April, 1973 the laws included in the Ninth Schedule

would not have absolute immunity. Thus, validity of such laws can be challenged on the

touchstone of basic structure such as reflected in Article 21[8] read with Article 14[9] and

Article 19[10], Article 15[11] and the principles underlying these Articles scope of basic

structure to cover even some of the Fundamental Rights.

_____________________________

6. AIR 1981 SC 2717. AIR 1975 SC 22998. Protection of Life & personal liberty- No person shall be deprived of his life or personal liberty except

according to the procedure established by law.

9. Equality before Law- The state shall not den to any person equality before the law or the equal protectionof laws within the territory of India.

10. Protection of certain rights regarding freedom of speech, etc.11. Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.


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B.SEPARATION OF POWERThe separation of powers between Legislature, Executive and the Judiciary constitutes basic

structure, has been found in Kesavananda Bharati's case by the majority. Later, it was reiterated

in Indira Gandhi's case. A large number of judgments have reiterated that the separation of

powers is one of the basic features of the Constitution. Montesquieu finds tyranny pervades

when there is no separation of powers: "There would be an end of everything, were the same

man or same body, whether of the nobles or of the people, to exercise those three powers, that of

enacting laws, that of executing the public resolutions, and of trying the causes of individuals."

The main thrust of the argument is that post- 1973, it is impermissible to immunize Ninth

Schedule laws from judicial review by making Part III inapplicable to such laws. It is

incompatible with the doctrine of basic structure. The existence of power to confer absolute

immunity is not compatible with the implied limitation upon the power of amendment in Article

368, is the thrust of the contention.

The key question, however, is whether the basic structure test would include judicial review ofNinth Schedule laws on the touchstone of fundamental rights. Thus, it is necessary to examine

what exactly is the content of the basic structure test. According to the petitioners of Ceolho

case, the consequence of the evolution of the principles of basic structure is that Ninth Schedule

laws cannot be conferred with constitutional immunity of the kind created by Article 31B.

Assuming that such immunity can be conferred, its constitutional validity would have to be

adjudged by applying the direct impact and effect test which means the form of an amendment is

not relevant, its consequence would be determinative factor. The power to make any law at will

that transgresses Part III in its entirety would be incompatible with the basic structure of the

Constitution. The contention is that there is no judicial review in absolute terms and Article 31B

only restricts that judicial review power. The effect of placing a law in Ninth Schedule is that it

removes the fetter of Part III by virtue of Article 31B but that does not oust the court jurisdiction.

C.AN INVISIBLE AMENDMENT TO THE CONSTITUTIONBy making 24th April 1973 as cutoff date, judiciary admits introduction of a new Chapter called

Basic Structure to the Constitution, to be a touchstone, to test the state action and it is in the

nature of an invisible amendment without inserting any letter to the Constitution.

Certainly, judiciary does not have powers to amend the Constitution, but by propounding the

Basic Structure doctrine as touchstone to test the legislative actions and by evolving the samefrom Keshavananda Bharati case to the present case and making the same as an enforceable

doctrine, the judiciary had exceeded its delineated powers. Basic Structure Doctrine is certainly

an invisible amendment to the Constitution or otherwise the date 24th April 1973 is irrelevant.

The Judiciary can have the Constitution as touchstone and not the doctrines, theories,

propounded later by the judiciary. Again, the big question is who can review the power of

judiciary to make such invisible amendments to the constitution. There is no provision or


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mechanism spelt out in the Constitution to review the judicial action by any independent organ,

similar to judicial review of legislative action read into Article 32 of the Constitution. At times,

legislature and the executive could only be helpless spectators of judicial action. The Supreme

Court openly admitted in the recent case of Ceolho that they are bound by not only provisions of

the Constitution but also Basic Structure Doctrine and it evidences that Basic Structure Doctrine

is apart from the Constitution and not part of the Constitution.

TUSSLE BETWEEN LEGISLATURE AND JUDICIARY-EVOLUTION OF

LAW

Till a long time, the Hon'ble Court's view was in conformity and similar with that of the

Legislature. The Supreme Court viewed that there was no threat from the enhanced power of the

legislature and that the radical agrarian reform was necessary to curb down the menace of

poverty and change the system unequal distribution of land holdings in the countryside. In

addition the insertions of various laws with in the Ninth Schedule also supported the faith of the

Court on the statecraft of the leaders like Jawahar Lal Nehru and Lal Bhadur Shastri. However,

the co-ordination between the judiciary and the legislature did't last for long, as the power

granted under Article 31-B was being widely misused by the legislature to achieve their political

ends. This provoked judiciary to control the enhanced legislative power of the legislature.

The decision of thirteen judges of the Honble Supreme Court of India in Kesavananda

Bharti, marked the crystallisation of a benchmark called basic structure to measure whether the

Parliament is seeking to destroy the Constitution, by using its powers under Article 368, which

was so far, understood to be a power, the exercise of which was not subject to judicial scrutiny.

Basic Structure is not contained in one or more provisions of the Constitution of India, but it is

supposed to be the sum total of the core of our Constitution. Judicial review has been expressed

to be part of the basic structure of the Constitution.

So what really is judicial review? And how has it been evaded? Courts have pronounced on

these themes in a number of judgments.

Coming to the role that the idea of judicial review plays in the non-derogable basic structure of

the Constitution, one needs to start with Keshavananda itself, where Khanna Js judgment is

educative.

"...The power of judicial review is, however, confined not merely to deciding whether in making

the impugned laws the Central or State Legislatures have acted within the four corners of the

legislative lists earmarked for them; the courts also deal with the question as to whether the laws

are made in conformity with and not in violation of the other provisions of the Constitution.... As

long as some fundamental rights exist and are a part of the Constitution, the power of judicial

review has also to be exercised with a view to see that the guarantees afforded by those rights are

not contravened.... review has thus become an integral part of our constitutional system and a


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power has been vested in the High Courts and the Supreme Court to decide about the

constitutional validity of provisions of statutes. If the provisions of the statute are found to be

violative of any article of the Constitution, which is the touchstone for the validity of all laws,

the Supreme Court and the High Courts are empowered to strike down the said provisions."

In Minerva Mills vs. UOI[12], it was held by the Supreme Court that the clauses of Article 31-C as introduced by the Constitution (42nd Amendment) Act, 1976, which sought to take away

the power of judicial review were unconstitutional. Reaffirming that the width of the

constitutional amendment had to be looked at in order to determine its validity, and accordingly

finding that a large number of laws could be brought within the ambit of Article 31-C by

invoking Part IV of the Constitution, it was held that those clauses seeking to take away judicial

review must be struck down lest Article 13 become a dead letter law and large scale violations of

fundamental rights take place. However, judicial review per se was not held to be part of the

basic structure of the Constitution by the majority in this decision, although Bhagwati J. in his

minority decision traced the power of judicial review to Articles 32 and 226 and held it to be a

part of the basic structure of the Constitution, and if taken away by a constitutional amendment

would amount to subversion of the Constitution. However, he went on to add that it is not

necessary to concentrate the power of judicial review in the constitutional courts; and if

effective alternate institutional mechanismsor arrangements for judicial review were made by

Parliament, then such amendment would be within its powers.

An authoritative pronouncement on this aspect was rendered by a decision of seven judges of the

Supreme Court in L. Chandra Kumar vs. Union of India[13]. Chief Justice Ahmadi, speaking

for all seven members of the bench, went into an exhaustive review of all the developments in

this regard, and held as under "It is emphatically the province and duty of the judicial

department to say what the law is..... A law repugnant to the Constitution is void; ... courts as

well as other departments are bound by that instrument."

He also referred to a very early judgment ofChief Justice Patanjali Shastri in State of Madras

v. V. G. Row, where he held -

". . . Our Constitution contains express provision for judicial review of legislation as to its

conformity with the Constitution, unlike as in America where the Supreme Court has assumed

extensive powers of reviewing legislative acts under cover of the widely interpreted 'due process'

clause in the Fifth and Fourteenth Amendments.

____________________________

12. (1980) 3 SCC 62513. (1997) 3 SCC 261


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If, then, the courts in this country face up to such important and none too easy task, it is not out

of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly

laid upon them by the Constitution. This is especially true as regards the 'fundamental rights', as

to which this court has been assigned the role of a sentinel on the qui vive. While the court

naturally attaches great weight to the legislative judgment, it cannot desert its own duty to

determine finally the constitutionality of an impugned statute."

Justice Ahmadi then went on to examine whether the power of judicial review vested in the High

Courts and in the Supreme Court under articles 226/227 and 32 is part of the basic structure of

the Constitution.,

The judges of the superior courts 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

Responding to Justice Bhagwathis argument in Minerva Mills that effective alternate

institutional mechanisms or arrangements to exercise the power of judicial review could be

created by Parliament; he put forth the following argument.

The constitutional safeguards which ensure the independence of the judges of the superior

judiciary are not available to the judges of the subordinate judiciary or to those who man

tribunals created by ordinary legislations. Consequently, judges of the latter category can never

be considered full and effective substitutes for the superior judiciary in discharging the function

of constitutional interpretation. We, therefore, hold that the power of judicial review overlegislative action vested in the High Courts under article 226 and in this court under article 32 of

the Constitution is an integral and essential feature of the Constitution, constituting part of its

basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test

the constitutional validity of legislations can never be ousted or excluded.

After Chandra Kumar, it is clear that judicial review is an integral part of the Constitution; and

the position is that even though tribunals may be created to adjudicate on various matters, the

jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under

Article 32, wherein lies their power to question executive and legislative judgment, and

scrutinize executive and legislative action vis--vis the Constitution, cannot be excluded even bya constitutional amendment.

What does then one make of various constitutional provisions (like A.30, A.358, etc.) that

provide, form the very outset, for exclusion of judicial review in certain cases? Is the exercise of

power under Article.31B, by the Parliament, post-1973 a complete or a partial exclusion of

judicial review, as the jurisdiction of the Constitutional Courts are still not shut out, vis--vis the

grounds of legislative competence? If it is partial exclusion, then does the elimination of Part III


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rights as a ground for challenge still violate basic structure? These are the complicating factors

that were recently argued from both points of view before the nine judges who had to decide the

question of reference order, keeping in mind, the need for continuous balance between individual

and societal claims, while interpreting the evolving Constitution.

I R Coelho (Dead) by LRs Vs. State of Tamil Nadu and Others[14]

In I.R.Coelho V State of Tamil Nadu , The Constitution bench of 5 judges referred the case to

higher bench. The problem that drew attention before the nine judge bench was whether such

evasion of judicial review, using the constitutional device of Article 31B, violates the basic

structure, therefore making the exercise of Article 31B r/w Article 368 (post-1973), a violation of

basic structure. The above judgments drew the attention of the nine judges.

On January 11 2007 while delivering the judgment the 9 Judge Constitutional Bench of the

Supreme Court held that 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 betested on the touchstone of the basic or essential features of the Constitution as reflected in

Article 21 read with Article 14, Article 19, and the principle underlying them. To put it

differently even though an Act is put in the Ninth Schedule by a Constitutional Amendment, its

provision would be open to attack on the ground that they destroy or damage the basic structure

if the fundamental right or rights is/are taken away or abrogated pertains or pertain to the basic

structure[15]

. The Supreme Court further stated that 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 of the Constitution 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 damagesthe basic structure as indicated in Article 21 read with Article 14, Article 19, and the principles

underlying there under.

Now after the landmark judgement of Supreme Court in I.R.Coelho which was delivered on

January 11 2007 it is now well settled principle that any law placed under Ninth Schedule after

April 23 1973 are subject to scrutiny of Court's if they violated fundamental rights and thus put

the check on the misuse of the provision of the Ninth Schedule by the legislative.

THE COUNTER ARGUMENTS

The supporters of the view that there are no fetters on Parliament to include laws in the Ninth

Schedule (Article 31-B) of the Constitution and such inclusion cannot be subjected to judicial

____________________________

14. AIR 2007 SC 86115. Thakker C.K., Lectures on Administrative Law, Eastern Book Co, 4th edn., Lucknow (2003).


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scrutiny give various arguments in favour of this.

The effect of Article 31-B is to remove a fetter on the power of Parliament to pass a law in

violation of fundamental rights. On account of Article 31-B, cause of action for violation of

fundamental right is not available because the fetter placed by Part III of the Constitution on

legislative power is removed and is non-existent. Non-availability of cause of action based onbreach of fundamental right cannot be regarded as exclusion or ouster of judicial review.

Article 31 B has stood the test of time and successfully weathered constitutional challenges. It is

part of our Constitution and was validly enacted in compliance with the requirements of Article

368. The same people who enacted the Constitution and the chapter on fundamental rights after

full deliberations enacted article 31 B. It was not enacted by a motley conglomeration in order to

deprive the people of fundamental rights.

One of the reasons for putting an Act in the Ninth Schedule was to remove uncertainties about its

validity arising out of forensic challenges of divided judicial pronouncements and to preventtime-consuming litigation which would impede speedy and effective implementation of the

statute in question.

There is no warrant to assume that Acts are put in the Ninth Schedule with the sole purpose of

preventing judicial scrutiny[16]

. That would be attributing mala fide to Parliament, which is not

permissible.

Above all, judicial review and scrutiny is always available in respect of the basic condition

which an amendment has to satisfy, namely that it does not damage or is violative of the basic

structure of the Constitution.

Occasions may well arise in future to insert laws in the Ninth Schedule because of possible

challenge in courts, divergent judgments and the time and resources expended on litigation.

CONCLUSION

To carry the debate forward, the fundamental assumptions and irrefutable basis of our

constitutional scheme need to be reiterated. First, the people have given unto themselves a

written Constitution that embodies and defines the diffusion of sovereign power. Secondly, the

power of judicial review is a part of the basic structure of the Constitution, unalterable even by a

constitutional amendment as affirmed by the Supreme Court in Keshvananda Bharti. And thirdly,representative democracy as an expression of the peoples will speaking through their elected

representatives is a non-negotiable premise of our republican charter which itself is the product

of an exercise of the unbroken sovereign power.

____________________________

16. Dr. Rega Surya Rao, Lectures on Legal Language and Legal Writing, Asia Law House, Hyderabad (2001).


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Two sides of the debate must thus be tested on the basis of these sacrosanct assumptions

which define our constitutional democracy. It is argued on behalf of those expounding the

primacy of the popular will as reflected in an act of Parliament, that the people having spoken

through their elected representatives cannot be stalled by courts since that would be a negation of

democracy and the legislative supremacy in the field of lawmaking. Pertinent questions continue

to be raised in the background of current political realities, our historical past and a deep-rooted

commitment to constitutional democracy. Those who distrust the power of judicial veto continue

to ask: Whether it is wise to subordinate the legislative process representing a wide margin of

considerations which address themselves only to the practical judgement of a legislative body to

judicial fiat?

And why should the personal preferences and prejudices of judges be allowed to be read

into the Constitution in the garb of interpretation? Is it not that judicial review involves an

exercise of political power in as much as it involves the "sovereign prerogative of choice" but

without commensurate political responsibility? And why should the courts rather than the other

two branches be the exclusive arbiter of the Constitution?

These questions have acquired a pronounced resonance in our transforming society and

evolving democracy. The way we approach and address these issues will define the quality of

our polity. For these to be addressed for posterity consistent with the first principles of

republican democracy, we need men of wisdom to work our institutions in harmony so that the

primary control of government remains with the people while judiciary fulfills the important role

as an auxiliary precaution against the excesses of majoritarian democracy. In this sense,

judicial review will be seen as essential to the promise of democracy and not antithetical thereto -

a sure guarantee of its longevity.

It has been the glory of our democracy in action that consistent with the mood of the

people we have been able to maintain harmony between different branches of government in a

manner that have thus far ensured the resilience of the institutions of a liberal democracy. By

way of a caveat however, one may add that in the fulfillment of its function to define values and

proclaim principles, the apex court as the guardian of democratic morality will doubtless

remember that the exercise of constitutional power is sustained in the final analysis by the

intellectual integrity, independence and fearlessness of judges.

The Supreme Court held that if the validity of any IX Schedule law has already been

upheld by this Court, it would not be open to challenge such law again on the principles declaredby this judgment. However, if a law is 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 Article 14, Article 19 and the principles underlying there

under.


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It may be argued that in 2007 there is no threat to the private property rights as the

country has shifted its stand from socialism to neo capitalism and that the goals have 13 shifted

from equal distribution of wealth to accumulation of wealth by the nation through the

individuals, organisations and corporations, for economic growth without compromising with

socialistic pattern of society. With weak governments at the centre there is no real or apparent

threat abrogating the fundamental rights by constitutional amendments. The judgment in fact

comes by way of affirming of the judicial powers of review of all the laws on the touchstone of

rights guaranteed in Part III and thereafter basic structured doctrine.

The unanimity of the judgment is a unique feature. But for the scholars of law the

unanimity of opinion amongst judges even to establish law, is an encouraging feature of the

strength of the judiciary.

BIBLIOGRAPHY

Primary Sources

Jain M.P. & Jain S.N., Principles of Administrative Law, N.M. Tripathi Ltd., Bombay(1979).

Dr. Rega Surya Rao, Lectures on Legal Language and Legal Writing, Asia Law House,Hyderabad (2001).

Thakker C.K., Lectures on Administrative Law, Eastern Book Co, 4th edn., Lucknow(2003).

Durga Das Basu, Adminsitrative Law, 5th edn., Kamal Law House, Calcutta(1998). Jain M.P., Cases and Materials on Indian Administrative Law, vol. 1, 1st edn., Wadhwa

and Company Law Publishers, Nagpur(1999).

Secondary Sources

1. www. google.com

2. www. manupatra.com

3. www.indiankanoon.com

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Judicial Review 1x Sch