By Anoliba Mani and B Jyothi Kiran,
4th year, National Law Institute University, Bhopal
The limits 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.
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 Parliament’s legislative competence to pass the law? Also, can the judicial power of review of legislation be exercised to usurp Parliament’s 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 Marshall’s 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.
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 harmonise 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 R Coelho (Dead) by LRs Vs. State of Tamil Nadu and Others. 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 giving compensation 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 was inserted by the First Constitutional (Amendment) Act 1951 which states that without prejudiced to the generality of the provisions contained in Article 31-A, 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 ground that such Act, Regulation or provisions 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. Thus Article 31-B of the Constitution of India ensured that any law in the Ninth Schedule could not be challenged 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.
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 of Jeejeebhoy 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 Acts into 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.
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 Hon’ble 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 J’s 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 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, 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 mechanisms or 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. 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 of Chief 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. 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 Bhagwathi’s 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 over legislative 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-à-vis the Constitution, cannot be excluded even by a 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-à-vis the grounds of legislative competence? If it is partial exclusion, then does the elimination of Part III 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
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 be tested 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. 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 damages the 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 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 on breach 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 prevent time-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. 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.
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 people’s 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.
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 braches 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.
1. Jain M.P. & Jain S.N., Principles of Administrative Law, N.M. Tripathi Ltd., Bombay (1979).
2. Dr. Rega Surya Rao, Lectures on Legal Language and Legal Writing, Asia Law House, Hyderabad (2001).
3. Thakker C.K., Lectures on Administrative Law, Eastern Book Co, 4th edn., Lucknow (2003).
4. Durga Das Basu, Adminsitrative Law, 5th edn., Kamal Law House, Calcutta(1998).
5. Jain M.P., Cases and Materials on Indian Administrative Law, vol. 1, 1st edn., Wadhwa and Company Law Publishers, Nagpur(1999).
1. www. google.com
2. www. manupatra.com