Anda di halaman 1dari 1

Judicial review is a basic structure of the constitution and it empowers the Higher Judiciary system to declare a law as unconstitutional,

if it is inconsistent with one or more provision of the constitution. The Concept of judicial review originated from US Constitution. The Power of judicial review can be applied by the Judiciary and it is expected from Judiciary to provide the reason why the law is unconstitutional. In Order to understand the impact and results of judicial review in context of Indian Constitution, We would like to get into few amendments done to Constitution of India. Here are few important amendments which reflect the impact of Judicial review. First Amendment 1951: Empowered the state to make special provisions for the advancement of the socially and economically backward class. Provided for the saving of laws providing for acquisition of estates, etc. Added Ninth Schedule to protect the land reform and other laws included in it from the judicial review. Added the major grounds of restrictions of freedom of speech and expression, viz., public order, friendly relation with foreign states and incitement to an offence. Also, made the restrictions reasonable and thus, justifiable in nature. Provided that state trading and nationalization of any trade or business by the state is not to be invalid on the ground of violation of rights to trade or business. The above amendment was challenged in Shankari Prashad case 1951, the Supreme Court ruled that the power of the parliament to amend the constitution under Article 368 also includes the power to amend fundamental rights , the word law in Article 13 includes only ordinary laws and not constitutional amendment acts. Therefore, the Parliament can abridge or take away any one the fundamental act and such law will not void under Article 13. But in the Golak Nath case 1967, the apex judiciary body, Supreme Court reversed its earlier stand. In that case, the constitutional validity of the Seventh Amendment Act, which inserted certain state acts in Ninth Schedule, was challenged. The Supreme Court ruled that the Fundamental Right are given a Transcendental and immutable position and hence, the parliament cannot abridge or take away any of the Fundamental act is also a law within the meaning of Article 13 and hence , would be void for violating any of the Fundamental Rights. The parliament reacted to the Supreme courts judgement in Golak Nath case by enacting the 24th Amendment Act 1971. This Act Amended Article 13 and 368. It declared that Parliament has the power to abridge or take away of the Fundamental Rights under Article 368 and such an act will be not a law under the meaning of Article 13. However Next twist came in the Kesavananda Bharti case 1973, It had 13 judges bench which is the largest bench so far, It upheld the validity of 24th Amendment Act 1971 and stated that parliament is empowered to abridge or take away any Fundamental Right. At the same time it laid down a new doctrine of the basic structure. It ruled that constitution power of the parliament under article 368 does not enable it to alter the basic structure of the constitution. Again, the parliament reacted, to this judicially innovated doctrine "basic structure" by enacting 42 nd constitutional amendment act 1976. This Act Amended article 368 and declared that there is no limitation on the constituent power of the parliament and no amendment can be questioned in any court or any ground including the contravention of any kind of fundamental rights. However, the SC in Minerva Mills case 1980, invalidated this provision as it excludes review which is basic feature of the constitution. Again in the Waman Rao case 1981, the SC adhered to the doctrine of basic structure and further clarified that it would apply to constitutional amendments enacted after April 24, 1973, the date of judgement of Kesavananda Bharti case 1973. Thus, the present position is Parliament can Ammend any part of the constitution, But limited to the extent of basic structure of the constitution. - See more at: http://www.polyeyes.com/Article/Power-of-Judicial-Review-Acts-as-Watchdog-Against-The-LawMakers#sthash.s83j5uDA.dpuf

Anda mungkin juga menyukai