Judicial review of constitutionality of constitutional amendments in India Cover Image

Sądowa kontrola konstytucyjności ustaw zmieniających konstytucję w Indiach
Judicial review of constitutionality of constitutional amendments in India

Author(s): Marcin Szwed
Subject(s): Constitutional Law
Published by: Kancelaria Sejmu
Keywords: India; constitutional amendments; judicial review

Summary/Abstract: The article presents evolution of the case law of the Supreme Court of India on the judicial reviewof the constitutionality of constitutional amendments, its evaluation in the legal doctrine and perceptionoutside India. Although the Constitution of India does not contain any limitations as to the substanceof constitutional amendments, during the political crisis in the period of Indira Gandhi’s rule,the Supreme Court has developed an effective system of judicial review of constitutional amendments.It is based on the assumption that the competence of the Parliament to enact amendments tothe Constitution is not unlimited, because the parliament cannot destroy the same act from which itderives its authority. It must therefore respect certain fundamental principles which form the so-called“basic structure of the Constitution”. Applying this doctrine, the Supreme Court overturned a numberof amendments, including those violating principle of judicial independence. The evaluation of theSupreme Court’s case law is divergent: according to some legal scholars it helped to save Indian democracy,while according to others it is full of loopholes and gives unlimited power to the judges.Despite this, it has had a substantial impact on the jurisprudence of courts in other countries in theregion or even in other parts of the World.

  • Issue Year: 2016
  • Issue No: 3
  • Page Range: 63-78
  • Page Count: 16
  • Language: Polish
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