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Right to review laws
N.C.S. RAGHAVAN
ARVIND RAGHAVAN
The fundamental rights and duties of a citizen of India have been dealt with earlier as part of an overall package of rights and duties of a citizen including the right to own and hold property without being interfered by the State except through due process of law and in public interest.
The right to amend the Constitution under Article 368 was discussed at length as an individual’s fundamental rights could be abridged or taken away through an amendment to the Constitution.In this regard the case of Keshavananda Bharathi vs State of Kerala (AIR 1973 SC 1461) was discussed in detail which tried to protect the basic structure of the Constitution holding that the same cannot be nullified or taken away.
To overcome the aforesaid restriction placed on Parliament to amend the Constitution in respect of the basic structure, the following sub-articles (4) and (5) to Article 368 were introduced through the Constitution (Forty Second Amendment) Act 1976.
“No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this Article {whether before or after the commencement of Section 55 of the Constitution (Forty Second Amendment) 1976} shall be called in question in any court on any ground”.
“For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article”.
The above amendments were brought to protect the right of Parliament to amend the Constitution to take the powers of any court of law to question the aforesaid right of Parliament.
However, in spite of the aforesaid amendments, the legal validity of these amendments themselves were called into question in the Supreme Court in Minerva Mills Ltd., vs Union of India, AIR 1980 SC 1789 (1980). The Supreme Court held in the above case that the aforesaid sub-articles (4) and (5) were ultra vires in so far it excluded the judicial review of the laws and amendments passed by Parliament as the Supreme Court categorically held that power of judicial review was a basic structure of the Constitution and the same cannot be taken away.
Under the circumstances, it can be concluded that the Supreme Court has upheld the doctrine of basic structure of the Constitution as enunciated in Keshavananda Bharathi’s case and also has upheld the right of the Supreme Court to judicially review all laws including the laws of amendments to the Constitution.
This judgment brings stability in respect of the basic structure of the Constitution.
Thereby, the fundamental rights of an individual including right to property get automatically protected.
(N.C.S. Raghavan is a chartered accountant and Arvind Raghavan, an advocate)
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