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Judicial Review as an Inviolable Part of Basic Structure of Constitution – A Critical Study

Dr P.Mohana Rao
LL.M, P.hD
Former Assistant Professor of Law, KLEF (Deemed to be) University, Guntur District, A.P.
Lecturer in M.R.V.R.G.R Law College, Vizianagaram, A.P.
Andhra Pradesh, India

Volume II – Issue IV, 2019

Judiciary is the key organ of modern State. One of the chief functions of the Judiciary is to interpret the Law. In the area of Constitutional Interpretation courts have always playing a law-creative function. When many Nations in the modern era having their written Constitutions. Then there has been a great emphasis on the Judicial Law making through constitutional interpretation to equip the decades old or in some instances centuries old Nations’ Fundamental Law with the rapidly changing-socio-economic, political, scientific and technical-needs of the people. In the process of judicial interpretation the courts have evolved numerous constitutional principles. For instance Judicial Review, Immunity of instrumentalities, separation of powers, judicial independency, territorial nexus, police powers etc., are really the judicial inventions. there are new paradigms in the Constitution of India that the Supreme Court has propounded a few innovative constitutional theories in some of its landmark judicial decisions such as Collegiums system for appointment of Judges to the higher Judiciary[1], basic structure theory[2], the most recent conceptions of Right to Privacy[3], and constitutional morality[4] In this article the writer is intended to focus on the questions that, what the judicial review basically is? What for the judiciary intervenes if already powers are separated? Is the judiciary by exercising power of judicial review trespasses into the legislative and executive domain?

 

[1] The apex Court, in Supreme Court Advocates on Record Association (SCAORA) vs.Union of India, decided on 16-10-2015, held that the constitution 99th Amendment Act and the National Judicial Appointments Commission Act, 2014(No40 of 2014) as void and restored the Collegium system for appointment of Judges to the higher Judiciary( the Constitution of India, p. 61, Published by Gogia Law Agency, Hyderabad

[2] Golak Nath AIR 1967SC 1643, Keshavananda, AIR 1973 SC 1461, 1973(4)SCC225, Indira Nehru Gandhi, AIR 1975, SC 2299.

[3] The Supreme Court in its sensational case, Justice Puttaswamy(retd) and Anr. vs Union of India, 26-9-2018, A nine- Judge bench of the Supreme Court of India unanimously held that right to Privacy is Constitutionally protected right in India, as well as being incidental to other freedoms guarantee by the Indian Constitution. This landmark judgment later has lot of legal implications on the centuries old Indian legislations which criminalizing same-sex relationship as well as bans on beef and alcohol consumption in many Indian States are brought before the court for judicial scrutiny The right to Privacy is an integral part of right to life , https://globalfexpression.columbia.edu.

[4] Navtej Singh Johar vs Union of India, https:// ohrh.law.ox.ac.uk, the five- judge Constitutional bench of the Supreme court unanimously decriminalizes all kinds of consensual sexual behaviour between adults and there by read down that part of Section 377 of I P C which criminalizes homosexuality by restoring 2009 Delhi High Court Judgment, and reviewed its own decision in Suresh Kumar Koushal vs. Naz foundation, dated 11th December 2013, https://en.m.wikipedia.org, which held that the power to repeal or amend legislation is vested with the legislative body but not to the Court.. In a landmark ruling ie., NGO – Independent thought case the Supreme Court read down exception 2 to S.375(which defines rape) of I.P.C as amended by Criminal Amendment Act, 2013 which allows such a sexual act. The age of consent has been made 18 now it permits intrusive sexual intercourse with a girl child aged between 15 to 18 years only on the ground that she has been married. This clause(exception 2 to S.375 of I.P.C)contradicts the POCSO Act 2012..The five-Judge bench of the supreme Court in its another sensational ruling scraps S.497of I.P.C a colonial era legislation that made the woman as chattel and treats the husband as her Master.www-indiatoday-in.cdn.ampproject…

 

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