Judicial review has an important role in protecting rights of underprivileged

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The process of Judicial review is important as it plays a role in protecting rights of the citizens. Is  judicial review only an extraordinary power to review any decision? This question popped up in my mind after I saw the status of prisoners who have completed their sentencebut who are still behind the bars. There are several reasons for this such as non-maintenance of data record or not providing free legal service to the unprivileged people, which are violating the rights of underprivileged people.

Why such record is not being maintained by the persons concerned and why the prisoners are not getting free legal aid facility is a pertinent question.It is a matter of judicial accountability where the fundamental rights of underprivileged people are violated. This is the reason why we must implement judicial accountability.

Relying upon KesavanandaBharti’s  case, the Court noticed Justice Khanna’s opinion that fundamental rights could be amended, abrogated or abridged so long as the basic structure of the Constitution is not destroyed and at the same time upholding 29th amendment as valid, it was noticed that in Indira Gandhi’s case Justice Khanna clarified his opinion, which tilted the balance in Kesavananda Bharti’scase in which six learned judges were on either side. Justice Khanna gave the casting opinion. The Supreme Court found that in Indira Gandhi v. Raj Narain Justice Khanna clarified his observations and said: “what has been laid down in the judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to fundamental right and is contained in Part III of the Constitution.”

The above observations clearly militate against the contentions that fundamental rights are not part of basic structure of the Constitution. The right to property was not a part of basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental right was a part of the basic structure of the Constitution. The acts put in 9th Schedule do not become part of the Constitution by such inclusion as no State legislature has power to repeal or amend the Constitution.

In Minerva Mills case justice Bhagwati did not consider the binding effect of majority judgment in Kesavananda Bharti case. They only examined the effect, impact and working of the doctrine of basic structure in KesavanandaBharti case. All these judgments show that violation in individual case has to be examined to find out whether violation of equality amounts to destruction of basic structure of the Constitution. Justice Khanna did not elevate the right of property to the level and status of basic structure or basic framework of the Constitution. He has resolved the doubts in his opinion in Indira Gandhi case.

The amending power inserting laws into 9th schedule does not entail complete removal of fundamental right chapter. 9th Schedule is not controlled by any designed criteria or standards by which the exercise of power may be evaluated. There is no constitutional control on such nullification. If the doctrine of basic structure provides a touchstone to test the amending power or its exercise, there can be no doubt and it has to be accepted that Part III of the constitution has key role to play in the application of the doctrine. The responsibility to adjudge the constitutionality of all the laws is that of the judiciary. Article 32 is part of Part III. The inclusion of an act in 9th Schedule does not exclude the check of Part III including that of Article 32. The unchecked and rampant exercise of powers by including acts in 9th Schedule, the number of which has gone up from 13 to 284 shows that it is no longer a mere exception. The absence of guidelines for exercising such power means absence of constitutional control, which results in destruction of constitutional supremacy and creation of parliamentary hegemony.

The Parliament can amend the provisions of Part III subject to limitation of basic structure doctrine. Since full judicial review is also integral part of the constitutional scheme, the essence of the principles behind Article 14, 19 and 21 are also part of basic structure. Once Article 32 is triggered, the legislation must answer a complete test of fundamental right. Every insertion into 9th Schedule does not restrict Part III review. For these reasons every addition to 9th Schedule triggers Article 32, as part of basic structure and is consequently subject to the review of the fundamental rights as they stand in Part III.

Equity, rule of law, judicial review and separation of powers form parts of basic structure of the Constitution. Each of these concepts is intimately connected. There can be no rule of law, if there is no equality before law. The ‘essence of right test’ is different from rights test. The argument that Part III is eliminated is incompatible with the implied limitation of power on Parliament. First the violation of rights of Part III is required to be determined, then its impact examined, and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow. The golden triangle of Article 14, 19 and 21 is basic feature of the Constitution as it stands for equity and rule of law.

By going through Judicial Review and various cases on it, I found that judicial review is playing a very crucial role in helping legitimizing and sustain the unequal structures and processes of fundamental right. Indeed, it is the principal language in which domination is coming to be expressed in the new era of globalization. It must be protected and constitute as a fundamental right of the Constitution. Thus, judicial review is a Constitutional imperative necessary for checking the arbitrariness of the executive as well as legislative forbearance. And as Dr. AmartyaSen says, the justification for protecting fundamental rights is not on the assumption that they are higher rights, but that protection is the best way to promote a just and tolerant society. Lord Steyn also said that judiciary is the best institution to protect fundamental rights, given its independent nature and also because it involves interpretation based on the assessment of values besides textual interpretation.

Zaid Imam

Zaid Imam is a student of NUSRL, Ranchi. He writes regularly for The Avenue Mail. He may be contacted at
Zaid Imam

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