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Constitution Twenty-Fifth Amendment Bill vis-a-vis the Power of Judicial Review
by I.P. Massey *

Cite as : (1971) 2 SCC (Jour) 37

The News Agency reports show that the Constitution 24th Amendment Bill which was passed by the Parliament in its last session has been ratified by more than half of the State Assemblies. This seeks to arm the Parliament with the power of amending the fundamental rights and thus fills the void created by the famous Golak Nath case. The important significance of this fact is that it would usher in Constitution 25th Amendment Bill during the current session of the Parliament which seeks to bar the jurisdiction of the court in matters relating to the compulsory acquisition of private property with a view to accelerate the pace of progress by rapid implementation of the directive principles contained in Article 39, clauses (b) and (c) for which the present Government stands committed to the people.

Instead of going into the ethics of the proposed 25th Constitution Amendment Bill which is a political issue, it is proposed to confine to a limited aspect which poses an important question, viz. can the proposed Amendment bar the jurisdiction of the courts absolutely in matters involving property right? The whole strategy of the 25th Amendment Bill is to oust the jurisdiction of the courts in determining any question pertaining to the legislation affecting property rights if they stood in the way of the implementation of the directive principles of state policy.

The text of the proposed 25th Amendment Bill is as follows:

In Article 31 of the Constitution —

"(a) For clause (2) the following clause shall be substituted:

"(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law, and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash.'

(b) After clause (2-A) the following clause shall be inserted:

'(2-B) Nothing in sub-clause (f) of clause (1) of Article 19 shall affect any such law as is referred to in clause (2).'

(c) After Article 31-B of the Constitution, the following Article shall be inserted:

'31-C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Articles 14, 19 or 31 and no law containing declaration that it is for giving effect to such policy shall be called in question in Court on the ground that it does not give effect to such policy: provided that where such law is made by the legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration for the consideration of the President, has received his assent.' "

The statement of objects and reasons clearly indicates that the proposed amendment seeks to do away with the consequences of the Supreme Court Decision in Bank Nationalisation case1 in which the Court held that the word 'compensation' in Article 31(2) means the "just equivalent" in money of the property compulsorily acquired. The main thrust of the judgment was that it made 'compensation' and the "relevancy of the principles for compensation" justiciable issues. In the case the Court went on to hold that the law which seeks to acquire property must also satisfy the requirements of Article 19(1)(f). Consequently the proposed amendment seeks to replace the word 'compensation' with the word 'amount' and also makes Articles 14, 19 or 31 inapplicable in such cases.

Will the Parliament succeed in its design in ousting the jurisdiction of the courts in matters relating to compulsory acquisition of property when the proposed 25th Amendment Bill becomes and Act is a legitimate question which comes to every mind and deserves consideration? The answer is in the negative. There is no dearth of precedents to show that such attempts by the Parliament in the past to oust the jurisdiction of the courts have failed them. The Parliament passed Constitution (Fourth Amendment) Act, 1955. Among other things it provided: '. . . no such law shall be called in question in any court on the ground that the compensation provided by that law is inadequate.' The purpose of this was to make the issue of adequacy of compensation non-justiciable. Parliament miserably failed there and the courts asserted their power of judicial review in matters of compensation by holding that law providing for compensation, to justify itself, has to provide payment of "just equivalent" at or about the time of acquisition, to the property acquired.2

Same was the experience of the Parliament when it passed Constitution (Fifteenth Amendment) Act, 1963 which added a clause to Article 217. The added clause (3) which was given retrospective effect provided:

"If any question arises as to the age of a judge of a High Court the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final."

The object of this provision was to give the President final say in any dispute relating to the age of a judge and to that the jurisdiction of the courts was expressly barred. But even here the Constitution Fifteenth Amendment Act did not succeed in abolishing judicial review. Justice J.P. Mitter successfully persuaded the High Court of Calcutta and the Supreme Court to review the order of the President of India under Article 217(3) deciding the question of his age. Justice D.D. Basu of the Calcutta High Court who heard the petition said "the jurisdiction of this Court to interfere — is not barred by the finality clause under Article 217(3)".3 The same view was taken by the Supreme Court when it heard the case on certificate granted by the High Court under Article 132. Hon'ble Shah, C.J. (as he was then), who delivered the judgment observed:

"Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order."4

It becomes clear from the above discussion that no attempt to oust the jurisdiction of the courts even by amending the Constitution can bar judicial review so long as Articles 32 and 226 are in the Constitution. Any provision which ousts the jurisdiction of the courts shall be construed in a manner that will not affect the constitutional jurisdiction of the Supreme Court and High Courts. Even after the passing of the proposed amendment the courts would not be lacking in power in matters of judicial review if the 'amount' fixed or the principles laid down by the Parliament for fixing the amount have no relevance to the property acquired. Replacing the word 'compensation' with 'amount' will not solve the problem because the idea of compensation is always there when the property is compulsorily acquired. The 'amount' which the Parliament will fix will not be an end in itself but a means to an end which is 'compensation' or 'just equivalent'. It is true that in such cases the Court will not sit in appeal over the decision of the Parliament but it will certainly interfere where it can be shown that either the decision of Parliament in fixing the amount is not based on relevant consideration or that there is a lack of good faith.

The experiences of other countries are not very much different. In England where Parliament is supreme and the exercise of the power of judicial review can be barred by ordinary legislation, Parliament has miserably failed in ousting the jurisdiction of the courts. Overruling the Lockwood doctrine in Yaffee case,5 the courts in England asserted their powers even in the face of "finality clause" of the Parliament. In ex parte Gilmore Denning, L.J., clearly stated:

". . . it makes the decision final in fact but not in law."6

In U.S.A., Article III of the Constitution limits the exercise of judicial review by the Supreme Court to 'cases' and 'controversies'. This bars the jurisdiction of the Supreme Court in cases which do not arise in the course of actual litigation between interested adverse parties. But even in true cases presented to the courts for decision, not all constitutional issues are determined by the Court. Certain issues have, by their very nature, been considered inappropriate for decision by the courts. These questions, it is considered, can be suitably determined by the political branches of the Government. These limitations have always been considered by the courts not one barring jurisdiction but of self limitation. The Supreme Court in U.S.A. has always asserted its claim to review a constitutional amendment even in the face of the argument that the whole process of constitutional amendment presents such issues which are political and hence inappropriate for judicial review. Though in America no attempt has been made by any constitutional amendment to bar the jurisdiction of the courts, if it is done it is bound to meet the same fate which it has met in India.

The proposed 25th Amendment Bill further provides in Article 31-C: "no law containing a declaration that it is for giving effect to such policy (Directive Principles of State Policy in Article 39-B and C) shall be called in question in any court on the ground that it does not give effect to such policy".7 This again poses a question whether the 'certificate' of the Parliament or the State legislature as the case may be shall be so conclusive as to bar complete judicial scrutiny? The courts have power to interpret the provisions of Article 39-B and C, like any other provision of the Constitution and in such a situation the courts would not hesitate to exercise power if the petitioner claims that the law has no relevance to Article 39-B and C. This would be a jurisdictional fact which the courts would decide. The Constitution of America provides that after the required number of States have ratified an amendment, the Secretary of State shall proclaim it to be a part of the Constitution. This gave rise to a question, whether the 'certificate' of the Secretary of State shall be so conclusive as to bar judicial scrutiny. It would be error to think that the courts would not disregard the 'certificate' of the Secretary even if there is any error of law or fact in the Secretary's declaration. In the same manner to refuse an aggrieved party the right to challenge the 'certificate' issued under proposed Article 31-C would be refusing to uphold the Constitution.

No one denies that in India the process of change must be smoothened so that the pace of progress may be accelerated and for this purpose obstacles shall have to be removed. But an attempt to bar the jurisdiction of the courts by constitutional amendments in order to quicken the pace of progress is not a right solution of the problem. A true solution would lie not in the "25th Amendment" but in the changed attitude of the judiciary which must come from the judiciary itself. No branch of the Government is supreme under the Constitution. Every branch of Government is supreme within its limited sphere. A true democratic Constitution can function only in an atmosphere of co-operation and understanding and not in distrust and misgivings among various branches of the Government. Today when the complexion of the Supreme Court has much changed one can hope a more pragmatic and functional approach to the whole problem.

    * LLM. (Luck), L.L.M. (Calif., Berkeley), U.S.A, Lecturer in Law, University of Gorakhpur, Gorakhpur. Return to Text

  1. 1970(1) SCC 248: (1970) 2 SCR 500. Return to Text
  2. Vajravelu v. Special Dy. Collector, AIR 1965 SC 1017; Union of India v. Metal Corporation, AIR 1967 SC 637. Return to Text
  3. 1971(1) SCC 404. Return to Text
  4. 1971(1) SCC 404 p. 411. Return to Text
  5. R. v. Minister of Health ex parte Yaffee, (1930) 2 KB 98. Return to Text
  6. R. v. Medical Appeal Tribunal ex parte Gilmore, (1957) 1 QB 574. Return to Text
  7. News agency reports indicate that on the recommendation of the Law Commission the Centre may modify some of the provisions of the proposed Constitution 25th Amendment Bill in this behalf. It has been pointed out by the Commission that the powers given to the State to enact legislation overriding fundamental rights and making it non-justiciable, by declaring it to be in pursuance of the Directive Principles of State Policy embodied in Article 39-B and C, is too wide and likely to be misused. The fact that a fundamental right may be violated or superseded by a simple majority in a State Legislature is likely to arm a State Government with arbitrary powers, which is not the objective of the 25th Amendment Bill. This authority should rest only with Parliament to ensure a certain amount of uniformity and to do away with avoidable overlapping. Return to Text
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