Judicial Review of the Constituent Power
Judicial Review of the Constituent Power
1. Introduction
The Constituent Power refers to the power to create, amend, or change the Constitution.
In India, this power primarily lies with the Parliament under Article 368, which allows it to amend the Constitution.
A critical question: Can the judiciary review the exercise of this constituent power?
In other words, is the exercise of the power to amend the Constitution subject to judicial review?
2. Constituent Power vs. Legislative Power
Constituent Power: Power to make or remake a Constitution.
Legislative Power: Power to make laws within the framework of the Constitution.
The Indian Parliament’s power to amend the Constitution is often described as a constituent power but exercised through a legislative process.
3. Judicial Review of Amendments — Historical Context
Initially, the question was whether constitutional amendments were beyond judicial review because they represent the exercise of constituent power.
Over time, the Supreme Court of India has developed doctrines clarifying the scope of judicial review over constitutional amendments.
4. Key Doctrines on Judicial Review of Constituent Power
A. Kesavananda Bharati v. State of Kerala (1973)
The most significant and landmark case on judicial review of constitutional amendments.
Facts: Challenge to the 24th, 25th, and 29th Amendments which curtailed property rights and impacted fundamental rights.
Held:
Parliament has wide powers to amend the Constitution, including fundamental rights.
However, Parliament cannot alter the “basic structure” or framework of the Constitution.
The “Basic Structure Doctrine” was evolved: Certain fundamental features (like democracy, rule of law, separation of powers, federalism, and fundamental rights) are inalterable.
Hence, judicial review applies to constitutional amendments to ensure they do not destroy or damage the basic structure.
Significance: This case firmly established that the constituent power is not unlimited and is subject to judicial review.
B. Golaknath v. State of Punjab (1967)
Before Kesavananda, this case held that Parliament cannot amend fundamental rights as they are transcendent and inviolable.
However, it did not explicitly develop the basic structure doctrine but restricted constituent power.
Overruled in part by Kesavananda.
C. Minerva Mills Ltd. v. Union of India (1980)
Reinforced the Basic Structure Doctrine.
Struck down parts of the 42nd Amendment which gave unlimited power to Parliament to amend any part of the Constitution.
Held that amendments destroying the balance between Fundamental Rights and Directive Principles violate the basic structure.
Reaffirmed that judicial review of constitutional amendments is essential to maintain constitutional supremacy.
5. What Constitutes the Basic Structure?
Though not exhaustively defined, key components include:
Supremacy of the Constitution
Rule of law
Principle of separation of powers
Judicial review
Federalism
Secularism
Sovereignty of India
Freedom of speech and expression
Democracy and republican form of government
6. Judicial Review in Practice
The judiciary acts as the guardian of the Constitution.
When Parliament exercises its constituent power to amend the Constitution, the courts can examine whether such amendments violate the basic structure.
If yes, such amendments are declared unconstitutional and invalid.
This acts as a check on arbitrary or excessive use of constituent power.
7. Importance of Judicial Review of Constituent Power
Maintains the supremacy and integrity of the Constitution.
Protects fundamental rights and the core framework of governance.
Prevents the legislature from destroying democracy or transforming the Constitution into a different entity.
Balances flexibility and rigidity of the Constitution.
8. Summary Table
| Aspect | Details |
|---|---|
| Constituent Power | Power to amend or remake the Constitution |
| Judicial Review | Courts can review constitutional amendments |
| Landmark Case | Kesavananda Bharati v. State of Kerala (1973) |
| Basic Structure Doctrine | Parliament cannot alter the Constitution’s basic structure |
| Basic Structure Includes | Democracy, Rule of Law, Federalism, Judicial Review, Secularism |
| Outcome | Amendments violating basic structure are invalid |
| Importance | Preserves Constitution’s supremacy and fundamental rights |
9. Conclusion
The Judicial Review of Constituent Power in India is a unique and crucial feature that protects the Constitution from arbitrary amendments that could erode its foundational principles. Through landmark judgments, especially Kesavananda Bharati, the Supreme Court has ensured that while the Constitution remains amendable to meet changing times, its core identity or basic structure remains inviolable.
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