Discuss how far the 42nd Amendment which introduced clauses (4) and (5) to Article 368 prevents judicial…

Question

Discuss how far the 42nd Amendment which introduced clauses (4) and (5) to Article 368 prevents judicial review of Constitutional Amendments.

Ghissu Editorial · Accepted Answer

Clauses (4) and (5), added to Article 368 by the 1976 42nd Amendment, sought to bar courts from questioning amendments, but they did not prevent judicial review. In Minerva Mills (1980) the Supreme Court struck them down, holding judicial review part of the basic structure set out in Kesavananda Bharati.

**Introduction**

The 42nd Amendment⟦2⟧⟦1⟧ of 1976, enacted during the Emergency, introduced clauses (4) and (5) to Article 368 to bar judicial review of constitutional amendments, challenging the constitutional balance between Parliament and judiciary. These provisions aimed to place constitutional amendments beyond judicial scrutiny, raising concerns about unchecked parliamentary power.

**Institutional Design and Constitutional Framework**

2. **Basic Structure Doctrine**: Kesavananda Bharati v. State of Kerala⟦3⟧ (1973) held that judicial review is part of the Constitution’s basic structure, limiting Parliament’s amending power. This doctrine protects essential features like fundamental rights and judicial review itself, preventing Parliament from altering the Constitution’s core framework.

**Implementation Challenges and Judicial Outcomes**

3. **Judicial Reversal of Clauses**: Minerva Mills Ltd. v. Union of India (1980) invalidated clauses (4) and (5), reaffirming judicial review’s indispensability as part of the basic structure. The Court emphasized that Parliament cannot abrogate judicial review, restoring the constitutional balance disrupted by the 42nd Amendment.

4. **Judicial Review’s Practical Role**: Subsequent rulings like S.R. Bommai v. Union of India (1994) and I.R. Coelho v. State of Tamil Nadu (2007) demonstrate judicial review’s continued role in safeguarding constitutionalism. ==The NJAC case (2015), which struck down the 99th Amendment, underscores that amendments remain subject to judicial scrutiny.==

**Way Forward**

5. **Strengthening Institutions**: Enhancing judicial independence through transparent appointments and adequate resources, alongside promoting constitutional literacy among legislators and citizens, can prevent future attempts to bypass judicial review.

**Conclusion**

The 42nd Amendment’s attempt to bar judicial review was overturned, preserving the judiciary’s role as guardian of the Constitution and ensuring that constitutional amendments remain subject to essential judicial scrutiny.

Discuss how far the 42nd Amendment which introduced clauses (4) and (5) to Article 368 prevents judicial review of Constitutional Amendments.

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