RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PUNJAB

CONSTITUTIONAL LAW PROJECT

FOURTH SEMESTER
“JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS”

SUBMITTED TO:

MR. SIDDHARTH FULLER

ASSISTANT PROFESSOR OF LAW

SUBMITTED BY:

DIGAANT AWASTHI

17051
SECTION – A

GROUP – 9
14.02.19
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ACKNOWLEDGEMENT

This project would not have been possible without the help and guidelines of some
respected persons, who deserve my greatest gratitude. The completion of this assignment
gave me immense self-satisfaction as well as confidence to further endeavor in research
work. I would like to show my sincere gratitude to Mr. Siddharth Fuller, Asst. Professor
of Law, Rajiv Gandhi National University of Law, Punjab for giving me thorough
advices and suggestions in making the concerned assignment throughout numerous
consultations. Many people, especially my classmates, have made valuable comments
and suggestions regarding this project which helped me to improve my project. I would
also like to extend my deepest gratitude to all those who have directly and indirectly
guided me in making this project.

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TABLE OF CONTENTS
CHAPTER - ONE ................................................................................................................................ 4
INTRODUCTION............................................................................................................................. 4
1.1 Stint of Origin ........................................................................................................................ 4
1.2 Constitutional arrangement .................................................................................................... 5
1.3 Limitations of Judicial Review .............................................................................................. 6
1.4 Doctrines of Judicial Review ................................................................................................. 7
1.4.1 Doctrine of Severability: ..................................................................................................... 7
1.4.2 Doctrine of Eclipse: ............................................................................................................ 8
1.4.3 Doctrine of Prospective Overruling: .................................................................................. 8
1.5 Judicial Activism ................................................................................................................... 9
CHAPTER – TWO ............................................................................................................................. 11
CASE STUDY : THE 99TH CONSTITUTIONAL AMENDMENT ............................................................ 11

2.1 Evolution of NJAC .............................................................................................................. 11

2.2 Working of NJAC .................................................................................................................. 13
2.3 Drawbacks ........................................................................................................................... 15
CHAPTER – THREE .......................................................................................................................... 17

CONCLUSION .............................................................................................................................. 17

REFERENCES .................................................................................................................................. 19

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CHAPTER - ONE

INTRODUCTION

Judicial review is a process under which executive and legislative actions are subject to
review by the judiciary. An executive decision may be invalidated for being unlawful, or
a statute may be invalidated if it is found to be violating the constitutional spirit. It is one
of the checks and balances in the separation of power, as in whenever the executive or the
legislative branches of the government transgress their constitutional ambit, the third
pillar prevents it from materializing. To safeguard the liberty and rights of individuals,
the judicial review is recognized as necessary and a basic requirement for construction up
of a novel civilization, which is constructed on the perception of community and
wellbeing morals. The powers of judicial review are vested significantly by means of the
higher judiciary of states and the S. C. I.

1.1 Stint of Origin

The concept of Judicial Review is basically originated in USA in the historic landmark
case Marbury v. Madison. But originally Lord Coke decision in, Dr. Bonham v.
Cambridge University had rooted the scope of judicial review first time in 1610 in
England. The US Constitution doesn’t provide power of judicial review expressly but
Article III of the U.S. Constitution as "the judicial power of the United States which
includes original, appellate jurisdiction and also matter arising under law and equity
jurisdiction incorporates judicial power of Court. Art. VI of the Constitution provides”
All powers of government are exercisable only by on the authority of the organ
established by the Constitution. Thus Art VI incorporates “Constitution of USA is the
supreme law of the land”. Judicial review is not expressly provided in the US
Constitution, but it is the formulation by the Court.

The doctrine of Judicial Review of United States of America is really the pioneer of
Judicial Review in other Constitutions of the world which evolved after the 18th century
and in India also it has been a matter of great inspiration .In India the concept of Judicial
Review is founded on the Rule of Law which is the swollen with pride heritage of the
ancient Indian culture and society. Only in the methods of working of Judicial Review

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and in its form of application there have been characteristic changes, but the basic
philosophy upon which the doctrine of Judicial Review hinges is the same. In India, since
Government of India Act, 1858 and Indian Council Act, 1861 imposed some restrictions
on the powers of Governor General in Council in evading laws, but there was no
provision of judicial review. The court had only power to implicate. But in 1877 Emperor
v. Burah1 was the first case which interpreted and originated the concept of judicial
review in India. In this case court held that aggrieved party had right to challenge the
constitutionality of a legislative Act enacted by the Governor General council in excess
of the power given to him by the Imperial Parliament. In this case the High court and
Privy Council adopted the view that Indian courts had power of judicial review with
some limitations. Again in, Secretary of State vs. Moment2, Lord Haldane observed that
“the Government of India cannot by legislation take away the right of the Indian subject
conferred by the Parliament Act i.e. Government of India Act of 1858”.

1.2 Constitutional arrangement

The necessities of judicial assessment were felt necessary post-independence by the

Constituent Assembly’s Drafting Committee. The compulsion of judicial review was
described in fundamental rights under Article thirteen (two) in Part III of the Indian
Constitution. Therein stated that at all rules, which shortens or take absent the essential
right of the people, the Union or State shall not create such rules. It is similarly specified
that slightly legislation, which has been made against the contravention of fundamental
rights, such law to be declared void.3

Article 13 read with Articles 32 and 226 of the Indian Constitution gives the power of
judicial review to the higher judiciary to declare, any legislative, executive or
administrative action, void if it is in contravention with the Constitution. The power of
judicial review is a basic structure of the Indian Constitution.4 Article 226 of the Indian
Constitution gives power to the High Courts to issue any appropriate order or writ for the

1
Emperor v. Burah ,(1877) 3. ILR 63 ( Cal)
2
Secretary of State vs. Moment ,(1913), 40. ILR 391 (Cal)
3
http://shodhganga.inflibnet.ac.in/bitstream/10603/134458/3/012_%20constitution%20of%20india%20and
%20judicial%20review.pdf.
4
L. Chandra Kumar v. Union of India, (1997) 3 S.C.C. 261.

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enforcement of fundamental right and other legal rights. In this context, the jurisdiction
of High Court under Article 226 seems wider than the jurisdiction of Supreme Court
under Article 32. Both Articles 32 and 226 are basic structure of the Indian Constitution.
Article 227 further gives power of supervisory control to the High Court over the
subordinate courts, special courts and tribunals. Furthermore, the Supreme Court has
power to grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed by any court or tribunal under Article 136
of the Indian Constitution confers special power on The Supreme Court exercises its
special power in those cases where gross injustice happens or substantial question of law
is involved.5 Power under Article 136 is discretionary one and can be exercised to decide
the case on justice, equity and good conscience.6 Again, curative petition has been
invented by the higher judiciary in order to prevent abuse of process or to cure gross
miscarriage of justice. It is also maintainable in case of violation of the principles of
natural justice.7

1.3 Limitations of Judicial Review

Though judicial review is powerful enough to combat legislative and executive actions,
but it still have some limitations. Firstly, Clause (2) of Articles 100 and 189 bar the
jurisdiction of the courts to invalidate the proceedings of a House of the Legislature on
specified procedural irregularities. But there would be no immunity if the proceedings are
held in defiance of the mandatory provisions of the Constitution by exercising powers
which the legislature does not possess under the Constitution. Secondly, non-Justifiability
of Directive Principles has been diluted in practice by court decisions which have
effectively enforced some of the directive principles in support of the fundamental rights.
Since the illustrated case of Maneka Gandhi v. Union of India, Article 21 of the
Constitution has been construed broadly and liberally in the light of directive principles.
Thirdly, Article 71(4) provides that the election of a person as President or Vice-
President shall not be called in question on the ground of the existence of any vacancy for
whatever reason among the members of the Electoral College electing him. Fourthly,

5
Pritam Singh v. The State, A.I.R. 1950 S.C. 169.
6
Union of India v. C Damani and Co., 1980 Supp. S.C.C. 707.
7
Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 S.C.C. 388.

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According to Article 74(1), the President of India shall act according to the advice
tendered by his council of Ministers. Article 74(2) provides that - "The questions whether
any and if so what, advice was tendered by Minister to the President shall not be inquired
into in any court. Fifthly, the provisions relating to delimitations of constituencies are
contained in Articles 81 and 82. These provisions are non-justiciable under Article
329(a): "Notwithstanding anything in this Constitution -(a) The validity of any law
relating to the delimitation of constituencies, made or purporting to be made under
Articles 327 and 328, shall not be called in question in any court”. Sixthly, Court does
not determine a hypothetical or academic question and would not, accordingly, determine
the question of Constitutionality of a statute until it is, or is about to be, given some
practical application and effect. In order words, an assumed potential invasion of a right
is not enough to invoke the power of judicial review. In order to challenge the
Constitutionality of a statute, plaintiff must show either an actual or a threatened invasion
of his rights

1.4 Doctrines of Judicial Review

Supreme Court of India formulated various doctrines on the basis of Judicial Review like
“Doctrine of Severability, Doctrine of Eclipse, Doctrine of Prospective Overruling” etc.
In India Judicial Review based on three important dimensions, these are” Judicial Review
of Constitutional Amendments”, Judicial Review of Legislative Actions, “Judicial
Review of Administrative Actions”.8 Some other doctrines are formulated by courts
using the power of judicial review are Doctrine of Pith and Substance, Doctrine of
Colorable legislation. These doctrines are originated by Supreme Court by using power
of judicial review through interpreting various Articles. Doctrine of Prospective
overruling is the doctrine to interpret the judicial decisions.

1.4.1 Doctrine of Severability:

Art. 13 of the Indian constitution incorporates this doctrine. In, Art. 13 the word” to the
extent of contravention” are the basis of Doctrine of Severability. This doctrine
enumerates that the court can separate the offending part unconstitutional of the

8
Prashant Gupta, “Doctrine of Judicial Rreview: A comparative analysis between India, U.K. and U.S.A”

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impugned legislation from the rest of its legislation. Other parts of the legislation shall
remain operative, if that is possible. This is known as “doctrine of severability” In A.K
Gopalan v. State of Madras9, case section 14 of Prevention Detention Act was found out
to be in violation of Article 14 of the constitution. It was held by the Supreme Court that
it is Section 14 of the Act which is to be struck down not the act as a whole. It was also
held that the omission of Section 14 of the Act will not change the object of the Act and
hence it is severable. Supreme Court by applying doctrine of severability invalidate the
impugned law.

1.4.2 Doctrine of Eclipse:

This doctrine applies to a case of a pre constitution statute. Under Art., 13(1) of the
constitution, all pre constitution statutes which are inconsistent to part 3 of the
constitution become unenforceable and unconstitutional after the enactment of the
constitution. Thus, when such statutes were enacted they were fully valid and operative.
They become eclipsed on account of Art. 13 and lost their validity. This is called
“Doctrine of Eclipse”. If the constitutional ban is removed, the statute becomes free from
eclipse, and becomes enforceable again. In Bhikaji Narain Dharkras v. State of M.P. an
existing State law authorized the State Government to exclude all the private motor
transport operators from the field of transport business. After this parts of this law
became void on the commencement of the constitution as it infringed the provisions of
Art. 19(1)(g) and could not be justified under the provisions of Art.19(6) of the
constitution. First Amendment Act, 1951 amended the Art. 19(6) and due to this
Amendment permitted the Government to monopolize any business. The Supreme Court
held that after the Amendment of clause (6) of Art. 19, the constitutional impediment was
removed and the impugned Act ceased to be unconstitutional and became operative and
enforceable.

1.4.3 Doctrine of Prospective Overruling:

The basic meaning of prospective overruling is to construe an earlier decision in a way so

as to suit the present day needs, but in such a way that it does not create a binding effect

9
A.K Gopalan v. State of Madras ,(1950) AIR 27 (SC)

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upon the parties to the original case or other parties bound by the precedent. The use of
this doctrine overrules an earlier laid down precedent with effect limited to future cases
and all the events that occurred before it are bound by the old precedent itself. In simpler
terms it means that the court is laying down a new law for the future. This doctrine was
propounded in India in the case of Golak Nath v. State of Punjab.10 In this case the court
overruled the decisions laid down in Sajjan Singh case11 and Shankari Prasad12 cases and
propounded Doctrine of Prospective Overruling. The Judges of Supreme Court of India
laid down its view on this doctrine in a very substantive way, by saying "The doctrine of
prospective overruling is a modern doctrine suitable for a fast moving society.” The
Supreme Court applied the doctrine of prospective overruling and held that this decision
will have only prospective operation and therefore, the first, fourth and nineteenth
Amendment will continue to be valid.

1.5 Judicial Activism

as per the black’s law dictionary, judicial activism is “a philosophy of judicial decision-
making whereby judges allow their personal views about public policy, among other
factors, to guide their decisions, usually with the suggestion that adherents of this
philosophy tend to find constitutional violations and are willing to ignore precedent”. 13
The Supreme Court of India has recognised in many landmark judgments that access to
justice is a fundamental right.14 Indian Judiciary has played an active role in ensuring
access to justice for the indigent persons, members belonging to socially and
educationally backward classes, victims of human trafficking or victims of beggar,
transgender, etc. Since Independence, the Courts in India have been adopting innovative
ways for redressing the grievances of the disadvantaged persons. In many cases, the
Supreme Court exercised its epistolary jurisdiction15 and took suo motto actions on mere
postal letters disclosing the human rights violations in society. Human rights violations,
which published in the newspapers, were taken into judicial consideration. The court

10
Golak Nath v. State of Punjab ,(1967) AIR 1643(SC)
11
Sajjan Singh v. State of Rajasthan ,(1965) AIR 845(SC)
12
Shankari Prasad v. U.O.I, (1951) AIR 458(SC)
13
Black’s Law Dictionary
14
Imtiyaz Ahmad v. State of Uttar Pradesh, A.I.R. S.C. 2012 642.
15
Sunil Batra v. Delhi Administration, (1978) 4 S.C.C. 494.

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entertains the petitions which are being filed by the public spirited persons in the public
interest. By doing so, the superior courts have liberated themselves from the shackles of
the principle of locus standi and given the birth to the Public interest litigation in India.
The shift from locus standi to public interest litigation made the judicial process “more
participatory and democratic.”16The Supreme Court held that public interest litigation is
different from the traditional adversarial justice system. The court said that public interest
litigation is intended to promote public interest, and hence the violations of constitutional
or legal rights of such large number of persons should not go unnoticed.17 The Supreme
Court has observed that “The compulsions for the judicial innovation of the technique of
a public interest action are the constitutional promise of a social and economic
transformation to usher-in an egalitarian social-order and a welfare-State”. While passing
any order under public interest litigation, the intention of the court is to enforce
constitution and rule of law in the society.18Article 32 confers power on the Supreme
Court to issue any order or writ for the enforcement of any of the fundamental rights. It
cannot be suspended even during emergency. An appropriate writ/order under Article 32
for the enforcement of Articles 17, 23 and 24 can be passed against a private individual
also.19

16
S.P. Sathe, “Judicial Activism in India”, Sixth Indian Impression, 2010 , Oxford University Press.
17
Prof. Dr. Nishtha Jaswal and Dr. Lakhwinder Singh, “Judicial Activism in India”, Bharati Law Review,
Jan. – March, 2017, http://docs.manupatra.in/newsline/articles/Upload/0BD8AAF5-4031-484F-AB92-
2B84EFE0ABCA.pdf.
18
State of Himachal Pradesh v. A Parent of a Student of Medical College, (1985) 3 S.C.C. 169.
19
Kamgar Union v. Union Of India ,A.I.R. 1981 S.C. 344.

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CHAPTER – TWO

CASE STUDY: THE 99TH CONSTITUTIONAL AMENDMENT

2.1 Evolution of NJAC

The system of appointment of judges has always been an area of confusion and
controversy. Several unsuccessful attempts have been made to arrive at a single effective
position of law since independence. The constitution of a permanent commission to
appoint judges of the higher judiciary was always a matter of concern and various steps
were taken by the government at different time-spans. The evolution of njac started with
the appointment of an ad hoc committee to recommend the best method of the
appointment of judges. The purpose of this committee was to ensure an independent yet
committed judiciary. It unanimously laid down that there should be a panel of 11
members which would comprise of the some Chief Justices of High Courts and few
members of both the houses. The nomination would be confirmed by at least 7 of those
members and then shall be presented to the President for confirmation. An ad hoc
committee submitted its report in 1949, and unanimously recommended a panel of
judicial and parliamentary members to nominate future judges. The President had to
confirm these nominations. The constituent assembly did not consider these suggestions
and discussed more democratic methods of appointment of judges. Thereafter the 121st
law commission report of 1987 which made elaborate references to Missouri Plan of
United States of America, which was not followed in the U.S. Constitutional setup. It
desired the Chief Justice of India with three senior most judges, the predecessor to the
office of Chief Justice of India, i.e., who has retired from the post of Chief Justice of
India to whom the Chairman has succeeded, three Chief Justices of High Courts
according to their seniority, Union Law Minister and Attorney General of India and an
outstanding law academic as member. The Venkatchalaiah Committee Report of (2003)
mentioned that on the basis of the Law Commission of India report of 1987 National
Judicial Commission was proposed in the Constitutional (67th Amendment) Bill, 1990.
The 1998 opinion indeed enlarges the ‘collegium’. In this sense, the purpose of the said
Amendment Bill is served. In 2003 the National Judicial Commission Bill had been
introduced through Constitution (98th Amendment) Bill. The Bill lapsed due to the

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dissolution of the Lok Sabha. After the formation of the 14th Lok Sabha (2004-2009)
National Advisory Council (NAC) prepared a concept paper on a National Judicial
Commission. The Constitution (120th Amendment) Bill, 2013 and the Judicial
Appointments Commission (JAC) Bill, 2013 were introduced in the Rajya Sabha in
August 2013. The Standing Committee submitted its report on the JAC Bill, 2013 in
December 2013. This was passed by the Rajya Sabha but lapsed with the dissolution of
the 15th Lok Sabha. The JAC Bill, 2013 was withdrawn on August 11, 2014. The
composition of National Judicial Appointment Commission remained the same from
2013 Bill to the 2014 Bill. The Bill of 2014 however, added the recommendations made
by the Standing Committee e.g., one of the eminent persons shall be nominated from
amongst the Scheduled Castes, the Scheduled Tribes, Other Backward Classes,
Minorities or women.

In 2014, the Bhartiya Janta Party led NDA government brought in the bill for setting up
of a National Judicial Appointment Commission for regulating the appointment of the
judges to the higher judiciary, i.e. Supreme Court and High Courts in India. The
government also brought in a bill to amend Article 124 of the Constitution in order to
provide the NJAC a constitutional status. Both the bills were overwhelmingly passed by
both the Houses of the Parliament without a single negative vote. The passage of the bills
with the approval of members of Parliament coming from different political parties itself
brings out the importance and the urgent need for setting up of the commission. The bill
was further ratified by sixteen states in order to grant the NJAC a constitutional status, as
required by the Constitution under Article 368.20 Finally the bill received the assent of the
President Mr. Pranab Mukherjee on 31st December 2014, scrapping the opaque and
unconstitutional Collegium system of appointing judges which clearly violated the basic
principal of check and balance of power by all the three organs of the state. Collegiums
system was unique in itself, wherein judges appointed themselves, a system unheard in
any judicial machinery in any part of world.

20
PTI, 16 states ratify Judicial Appointments Commission Bill, 02/02/2015,
http://timesofindia.indiatimes.com/india/16-states-ratify-Judicial-Appointments-
CommissionBill/articleshow/45664202.cms ( Jan . 28, 2015).

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On 16th October, 2015 the judiciary took a tough stand and stuck down the 99th
Constitutional Amendment of 2014 in the Supreme Court Advocates on Record
Association v. Union of India (4th Judges case)21; a move which is celebrated by many
pro-judicial independence supporters and frowned upon by those who believed the
democracy to be the heart and soul of the Constitution. There are various problems which
have been voiced against the recent judgment. The amendment was declared
unconstitutional by a majority of 4:1 with Chelameswar J. giving a dissenting opinion in
favour of the retentionist view. Although the judgment does manages to maneuver a way
to uphold the collegium structure as the foreword to the independence of judiciary which
is a basic structure of the Constitution, but it raises few extremely important questions to
consider. One view holds that this verdict upholds an extra constitutional device created
by the Supreme Court’s own members to meet its own ends rather than accepting a
system lawfully enacted by a popular elected Parliament.22 The judgment may be
celebrated for the fact that it has upheld the independence of judiciary as the basic
structure of the Constitution and it is a well-established fact now that the basic structure
of the Constitution cannot be violated or be taken away.23 However, the doctrine of basic
structure itself remains on very flimsy ground. The judiciary has vested upon itself to be
the sole determinant of the various components that can be the part of the basic structure
of the Constitution.24 Hence, the unease of the parliament is not completely unjustified

2.2 Working of NJAC

The National Judicial Appointment Commission will recommend to the President, names
of the eligible persons for appointment as the Chief Justice of India and other Judges of
the Supreme Court and Chief Justices and other Judges of High Courts and for their
transfers and for matters connected therewith or incidental thereto. The new body which
is to be headquartered in New Delhi is to be headed by the Chief Justice of India.
Carefully analyzing the compositional structure of the Commission, it is ipso facto
evident that the judiciary had an active or one can even say a superior role in whole

21
Supreme Court Advocates on Record Association v. Union of India, (2015) 11 Scale 1.
22
Suhrith Parthasarathy, “An Anti-Constitutional Judgment”, The Hindu, Oct. 30, 2015
23
Kesavananda Bharati v.State of Kerala, (1973) 4 SCC 225
24
Minerva Mills v. Union of India, AIR 1980 SC 1789.

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exercise of the recommending power of the commission. As per the NJAC Act, the
commission is to be a six member body, including the Chairman, which is to be the Chief
Justice of India. The body will comprise of the Chief Justice of India, two senior most
judges of the Supreme Court of India, Union Law Minister and two eminent personalities
belonging to schedule caste/tribe or women community. The Act lays down the
procedure for selection of these two eminent persons wherein a body comprising of the
Prime Minister, Leader of Opposition (In case, there is no leader of opposition, then the
leader of the largest opposition party) and the Chief Justice of India shall collectively
decide on their nomination in the body. Hence looking into the numerical strength of all
the three organs of the state in the composition of the commission, the judiciary is
represented by 3 members, while the Executive is represented by only one member, i.e.
the Law Minister. The selection process of two eminent members has an active role of
judiciary in addition to the common consensus of the ruling and opposition party. Hence
minutely studying the composition of the commission, there is not a single chance of
Executive abusing its power with malafide intention to influence the judiciary. Hence
speculations of loss of judicial independence by enactment of NJAC hold no serious
ground. The Act also provides ample room for ensuring federal spirit in the procedure for
appointment of Judges and Chief Justice of the High Courts, where the Commission shall
take into consideration the views of the Governor and Chief Minister of the concerned
state where appointments are to be made. This arrangement is perfectly in tune with the
original Constitutional provision for appointment laid down under Article 124 of the
Constitution. The Act also ensures that the Commission doesn’t take up an arbitrary
shape where members using their numerical strength and other kind of malafide influence
get the recommendation passed by the Commission. Accordingly the Act states that no
recommendation of the Commission shall be valid, if it has been vetoed by any of the two
members of the commission. Hence a consensus is required amongst the members
regarding the recommendation to be made to ensure a nonpartisan and transparent
process of appointment of judges. Hence the veto provision is an important key to ensure
that the judiciary remains free from influence of any kind from any organs of the state.
Hence the setting up of the National Judicial Commission for judicial appointments is

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beyond doubt a benevolent, balanced and a perfect method for appointing the persons of
integrity to the temples of justice.

Hence, the establishment of the National Judicial Appointment Commission is a

benevolent step further in the direction of judicial reforms. Independence of the judiciary
must remain intact along with accountability of the judges. Sanctity of the judiciary
depends upon its fair and impartial conduct which should be free from arbitrary powers.
The supremacy of the Constitution can be maintained only if along with separation of
powers, the system of checks and balances is also implemented. In a democratic society,
where legislature is accountable to the people and the executive has an accountability
towards the legislature, Judiciary too must be accountable to the people in a constitutional
manner which doesn’t effects its ability of imparting free and nonpartisan justice. As it is
said, absolute power corrupts absolutely; we the citizens of this magnificent country
should make sure that all the three organs of the state work in a harmonious way abiding
by the constitution and having checks and balances over each other. Hence establishment
of the NJAC not only makes the judiciary accountable, but also strengthens its
independence from any kind of malafide activities and partisan character, by making it
more transparent, democratic in accordance with the intentions of our founding fathers.25
The act has been hailed by sections of the legal fraternity to be the perfect solution for the
issue of judicial appointment. It has been asserted that the act strikes the perfect balance
between the doctrine of separation of powers and judicial accountability. The decision
should not be read as if the judiciary has crossed its “Laxmanrekha”. The Supreme Court
is also welcoming the full-fledged debate on the existing collegium system and wants it
to be updated.

2.3 Drawbacks

The National Judicial Appointments Commission did have certain drawbacks; the first
which can be pointed out is the insertion of Article 124C in the Constitution by the 99th
Amendment, which lead to Predominance of the Executive. The very wordings of the
article give an impression of the predominance of executive in the appointment matters.
25
Satyam Rathore and Ankita Rituraj, “National Judicial Appointment Commission: An analysis of NJAC’s
effect on Judicial Independence in India”, LAW MANTRA, (International Monthly Journal, I.S.S.N 2321
6417) Journal.lawmantra.co.in www.lawmantra.co.in

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Article 124C states that Parliament shall be the one to regulate the process of
appointment of the Chief Justice of India and other Judges of the Supreme Court and
Chief Justices and other Judges of High Courts by enacting statutory provisions and it
shall empower the Commission to lay down by regulations the procedure for the
discharge of its functions, the manner of selection of persons for appointment and such
other matters as may be considered necessary by it. For the furtherance of this article the
Parliament indeed enacted the National Judicial Appointment Commission Act, 2014 and
empowered the Commission to make rules and regulations with regards to the procedure
of appointment of judges. The second drawback could be with regards to the Position of
Chief Justice of India, but this is not the only reason why the advocates of judicial
independence are arguing against the setting up of the Commission. Second proviso to
Section 538 and Section 6(6)39 of the National Judicial Appointment Commission Act,
2014 state that the recommendation shall not be made if any two members of the
Commission do not conform to it. It conveniently left the question open as to the position
of the Chief Justice of India with regards to the appointment or non-appointment of the
recommended. In other words if the three members of the collegium and the law minister
recommends on the suitability of a prospective judge, the two eminent members (who
may be from a non-law background) may neutralize the recommendation. Extra-legal or
non-judicial factors have all potential to dominate through this veto in the judicial process
of appointment of judges.

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CHAPTER – THREE

CONCLUSION

There is no dispute on the fact that the judiciary should also regulate itself. It should also
put some restraints on its powers, whenever it is required. The Supreme Court in
Divisional Manager, Aravali Golf Course v. Chander26 Has observed that: “Judges must
know their limits and must not try to run the Government. They must have modesty and
humility, and not behave like Emperors. There is broad separation of powers under the
Constitution and each organ of the State-the legislature, the executive and the judiciary-
must have respect for the others and must not encroach into each other’s domains.”

Considering the objections to the doctrine of ‘judicial review’, however, we must also
consider another nuanced objection to the doctrine of ‘judicial review’. It is reasoned that
the substantive contents of a constitution adopted by a country at a particular point of
time reflect the will of its framers. However, it is not necessary that the intent of the
framers corresponds to the will of the majority of the population at any given time. In the
Indian setting, it is often argued that the members of the Constituent Assembly were
overwhelmingly drawn from elite backgrounds and hence did not represent popular
opinions on several vital issues. Furthermore, the adoption of a constitution entails a
country’s recommitment to its contents and the same become binding on future
generations.27 Clearly the understanding and application of constitutional principles
cannot remain static and hence a constitutional text also lays down a procedure for its
amendment. This power of amendment by the legislature is not unlimited and the idea of
‘judicial review’ designates the higher judiciary as the protector of the constitution. This
scheme works smoothly as long as the demands and aspirations of the majority of the
population correspond with the Constitutionalism and Democracy. However, scope for
dissonance arises when majoritarian policy-choices embodied in legislative or executive
acts come into conflict with constitutional provisions. The higher judiciary is then
required to scrutinize the actions of its co-equal branches of government. Some scholars
have argued that fact-situations of this type involve tensions between the understanding

26
Aravali Golf Course v. Chander ,54 (2008) 1 S.C.C. 683.
Stephen Holmes, “Precommitment and the Paradox of Democracy”; (_ _), “Constitutionalism and
27

Democracy: Transitions in the Contemporary World”, (Oxford University Press, 1993) at p. 195-240

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of the words ‘constitutionalism’ and ‘democracy’ respectively. Hence, it is postulated

that the provision for ‘judicial review’ gives a self-contradictory twist to the expression
‘constitutional democracy’.28 In this regard the role of the judiciary can be described as
one of protecting the counter majoritarian safeguards enumerated in the Constitution.

Constitution of India has a clear declaration that parliament and state legislatures are
independent sovereign entities and judiciary does not have the power to enquire into their
proceedings. Whereas India’s judiciary has been known as an active in protecting
people’s rights, for which it has interpreted the constitution, law and jurisprudence in
favour of public.29There are innumerable cases where the judicial intervention is common
despite the fact that the field is covered by some statute or subordinate legislation.
Judicial intervention emerged and have largely been practiced by the Supreme Court for
long time and remained a moot issue in political and executive sphere. The Delhi High
Court had issued directions touching every aspect of daily life, such as nursery school
admissions, un-authorised schools, criteria for free seats in schools, number of free beds
in hospitals on public land, begging in public, use of subways, illegal constructions in
Delhi, size of speed breakers, auto-rickshaw overcharging and frequency of road
accidents. The judges should know their limits and not try to run the government.

Therefore, from the above arguments and references, it is clear that the power of judicial
review is a part of the basic structure of the Constitution, and is permanent even by a
constitutional amendment as affirmed by the Supreme Court in Kesavananda Bharti case.
Representative democracy as an expression of the people’s will, speaking through their
elected representatives, is a nonnegotiable principle of our republican agreement which
itself is the product of an exercise of the unbroken sovereign power. The Supreme Court
of India as the guardian of democratic morality will remember that the exercise of
constitutional power is persistent in the final analysis by the intellectual integrity,
independence and fearlessness of judges without any doubt.

28
Jurgen Habermas and William Rehg, “Constitutional democracy: A paradoxical union of contradictory
principles?”, Political Theory, Vol. 29, No. 6 (December 2001) at p. 766-781
29
(__) ,“Judicial Activism: Concept and historical background of Judicial review”,
http://shodhganga.inflibnet.ac.in/bitstream/10603/40573/10/13_chapter4.pdf.

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REFERENCES

Articles and Reports:

 Fabrice Hourquebie, Pouvoir Constituant Derive et Controle du Respect des Limites ,
Paper Presented at the VII World Congress of the Inter national Association of
Constitutional Law 3 (June 13, 2007),
 Arnold Brecht, Federalism and Regionalism in Germany - The Division of Prussia,
1945
 Annals of Congress, House of Representatives, 1st Congress, 1st Session 735 (Aug. 13,
1789)
 Jurgen Habermas and William Rehg, “Constitutional democracy: A paradoxical union
of contradictory principles?”, Political Theory, Vol. 29, No. 6 (December 2001) at p.
766-781
 Granville Austin, Working a Democratic Constitution: A History of the Indian
Experience, New York 1999, note 3, p. 200.
CASES:
 Coleman v. Miller 7 U.S 433; 59 S.Ct 972
 Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC
 Golak Nath v. State of Punjab ,(1967) AIR 1643(SC)
 Sajjan Singh v. State Of Rajasthan ,(1965) AIR 845(SC)
 Kesavananda Bharati v.State of Kerala, (1973) 4 SCC 225

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