Previous Year Question
With reference to the Constitution of India, consider the following statements:
No High Court shall have the jurisdiction to declare any Central law to be constitutionally invalid.
An amendment to the Constitution of India cannot be called into question by the Supreme Court of India.
Which of the statement(s) given above is/are correct?
Only 1
Only 2
Both 1 and 2
Neither 1 nor 2
Correct Answer: D
Detailed Solution
Statement 1 is incorrect
High Courts possess the power to examine the constitutional validity of both Central and State laws.
Constitutional basis:
Article 13: A law inconsistent with Fundamental Rights is void to the extent of the inconsistency.
Article 226: High Courts may issue writs for enforcement of Fundamental Rights and for other purposes.
Article 227: High Courts possess supervisory jurisdiction over courts and tribunals within their territorial jurisdiction.
If a Central law violates Fundamental Rights, suffers from lack of legislative competence or contravenes another constitutional provision, a High Court may declare it unconstitutional.
Forty-second and Forty-third Amendments
The Forty-second Constitutional Amendment Act, 1976:
Inserted Article 131A, giving the Supreme Court exclusive jurisdiction over the constitutional validity of Central laws.
Inserted Article 226A, preventing High Courts from considering the constitutional validity of Central laws.
However, the Forty-third Constitutional Amendment Act, 1977 repealed Articles 131A and 226A and restored the earlier judicial-review jurisdiction of High Courts.
Under the present constitutional position, a High Court can declare a Central law unconstitutional.
Statement 2 is incorrect
Parliament possesses the power to amend the Constitution under Article 368, but this power is not unlimited.
In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that:
Parliament may amend any part of the Constitution.
It cannot destroy or damage the Basic Structure of the Constitution.
The Supreme Court may examine whether a constitutional amendment violates the Basic Structure.
Some recognised components of the Basic Structure are:
Supremacy of the Constitution;
Republican and democratic government;
Secularism;
Federalism;
Separation of powers;
Rule of law;
Judicial review; and
Independence of the judiciary.
The Forty-second Constitutional Amendment inserted clauses (4) and (5) in Article 368 in an attempt to exclude constitutional amendments from judicial review and declare Parliament’s amending power unlimited. In Minerva Mills v. Union of India (1980), the Supreme Court declared these provisions unconstitutional.
Therefore, the Supreme Court may review a constitutional amendment and invalidate it if it violates the Basic Structure.