By passing a constitutional amendment, the power to decide election disputes of Prime minister was excluded from judicial review and it was conferred on the Parliament. Examine its validity.

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Answer:

By passing a constitutional amendment, the power to decide election disputes of Prime minister cannot be excluded from judicial review and it cannot be conferred on the Parliament.

 

39th Amendment to Art. 71 of the Constitution was passed to exclude the jurisdiction of High Court to try an election petition relating to the  Prime Minister and the Speaker of Parliament.

The amended article provides that matters relating to their election shall be regulated by a Parliamentary law.

 

The said amendment was invalidated in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

 

The reasons assigned are as below:

 

1) The amendment violated free and fair elections which was an essential feature forming part of the Basic Structure of the Constitution.

 

2) Art. 71(4) was held unconstitutional on the ground that it was an outright negation of the Right to Equality conferred by Article 14, a right which is a basic postulate of our Constitution.

 

3) The Court held that these provisions were arbitrary and were calculated to damage or destroy the Rule of Law.

 

4)  The Supreme Court added the following features as “Basic Features” to the list of basic features laid down in the Keshavananda’s case to give effect to free and fair elections.

 i) Rule of Law

 ii) Judicial Review

iii)Democracy, which implies free and fair election

 iv) Jurisdiction of Supreme Court under Article 32.

5)  The Court observed that the jurisdiction of the Supreme Court to try a case on merits cannot be taken away without inquiry to the basic postulates of Rule of Law and of justice within a politically democratic constitutional structure.

 

Thus it held that the judicial review of the Court to try the election disputes relating to the Prime Minister and Speaker cannot be excluded by amendment of the constitution, since it damaged the Basic Structure of the Constitution.

Last Updated On January 29, 2018
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