What do you understand by Judicial Review? What is the effect of Article 13 on Pre-constitutional laws and Post-constitutional laws?

Question: What do you understand by Judicial Review? What is the effect of Article 13 on Pre-constitutional laws and Post-constitutional laws? Explain your answer with the help of decided cases. [UPJS 2013]

Find the answer to the mains question only on Legal Bites.[What do you understand by Judicial Review? What is the effect of Article 13 on Pre-constitutional laws and Post-constitutional laws? Explain your answer with the help of decided cases.

Answer

‘Judicial Review’ is the power of courts to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and hence void.

Khanna in the Kesavananda Bharati case (AIR 1973 SC 1461) said that Judicial Review has become an integral part of our Constitutional System and power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes.

If the provisions of the statutes are found to be violative of any of the articles of the Constitution which is the touchstone for the validity of all laws the Supreme Court and the High Courts are empowered to strike down the said provisions.

The court in this case also propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution. Further, in the case of S.P. Sampath Kumar v.UOI (1987 SCR (3) 233), the court has well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was taken away, the Constitution would cease to be what it was.

It further declared that if a law made under Article 323-A (1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

Article 13 of the Indian Constitution states that laws that are inconsistent with or are in derogation of the fundamental rights, shall be held void by the court. The clause of this provision provides that:

All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall be void to the extent of such inconsistency. But this does not make the existing laws that are inconsistent with the void of the fundamental right ab initio. The entire Part III of the Constitution including Art. 13(1) is prospective.

Hence, existing laws that are inconsistent with any provisions of Part III are rendered void, only with effect from the commencement of the Constitution, which for the first time created the Fundamental Rights. The inconsistency referred to in Art.13(1), therefore, does not affect the transaction past and closed before the commencement of the Constitution or the enforcement of rights and liabilities that had accrued under the ‘inconsistent laws’ before the commencement of the Constitution.

The second clause of Article 13 provides that:

The State shall not make any law that takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall be void to the extent of the contravention.

Cl. (2) makes the inconsistent laws void ab initio and even convictions made under such unconstitutional laws shall have to be set aside. Anything done under the unconstitutional law, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such unconstitutional law. Nor is it revived by any subsequent event. However, this doesn’t mean that the offending law is wiped out from the statute book altogether. It remains in operation as regards persons who are not entitled to the fundamental right in question.

This was well discussed in the case of Keshav Madhav Menon v. State of Bombay 1951. In this case, the petitioner published a pamphlet according to the pre-constitutional laws in 1949 but as the Indian constitution came into effect in 1950 it gave the freedom of speech and expression under Article 19 of the Indian constitution. Therefore the apex court said that the petitioner’s trial must go on as the benefit of Article 13 would not be given to him because article 13 is not retrospective.

Therefore, it is clear that once the statute is declared invalid for contravention of a fundamental right, the invalidity attaches to the law from the date of commencement of the Constitution in the case of a pre-Constitution law and from the date of its enactment in the case of a post-Constitution law.

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Important Mains Questions Series for Judiciary, APO & University Exams

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