The recent controversy over the Constitutional amendment in India’s legislations pertaining to the Judicature in India clearly demonstrates the problematic nature of judicature in India. There is no doubt that the Constitution has been amended in an expedient manner, but the question is whether the amendment actually accomplishes the intended result. The present government inherited a Constitution which was constitutional on paper but not express as such. In other words, the constitution did not spell out what kind of checks and balances would be in effect if there was a deviation from the prescribed pattern of conduct.
This brings us to the next point. Whether, in the first place, the Constituency governments need any help with regard to judicial review of laws, the composition and the procedures involved in a judicature cannot be answered without going through the argument advanced by different commentators. The fact is that the Constituency Governments has no special powers or prerogative to pass judicature in any case where the constitution does not provide for it. If they do, they are bound to follow the constitution even if they disinherit the member of the legislature. So the question is whether the present Constituency Governments has the power to pass judicature on their own?
The answer is no. If they do not have the option, they cannot pass judicature. What they actually have is the option of amending the constitution, which is obviously more difficult than the executive and judicial review of laws. But the executive and judicial review will still need to happen. The difference is that, under the constitution, the judicature, which comes under the executive branch, must be subject to the impeachable office of the president.
The same is the case with the Judicial Review Clause, which is imposed by the judicature. If the legislature attempts to pass a constitutional amendment, they must first amend the judicature clause. And then only, if the amendment is successful, can they move for the general judicature. This is a rather strange procedure; but then the same is true of all constitution amendments. Unless there is a unanimous agreement in the House and the Senate, the constitution amendment will never become effective.
All these complications lead to one inevitable conclusion – that the constitution amendment, if passed by both houses, has to be put through by the regiments of parliamentarians. It is not a simple thing to do. The house of assembly may refuse to ratify the constitution amendment once it is passed. There will be widespread demonstrations. There will also be political turmoil.
Hence, the last analysis that we will make here is that a constitution amendment cannot become law, if the Houses of Parliament do not agree to it. That was the conclusion we arrived at after conducting a complete study of the Indian constitutional system. We have noticed that every time there is a constitutional crisis, the normal procedure is for the constitution bill to be passed through the house of assemblies with the help of a majority vote. This is done with the proviso that some amendments are suggested by the opposition parties. If these amendments are opposed by the majority of the legislature, the bill is again passed through the house of assemblies with a super-majority vote. Once the bill has been passed, the question of its viability, legally speaking, is resolved.
But this is not the case with constitution amendments. For, even if the House of Representatives and the Senate agree to the constitution amendment, there is no guarantee that the same shall be accepted by the people at large. Suppose, for example, the House of Representatives rejects a constitution amendment that seeks to grant an equal right to women over men, or that seeks to grant workers greater compensation, the constitution would still be subjected to a referendum.
Even the very same constitution amendment, once voted into the constitution, could, by the process of sunset, come into force only after a certain number of years have elapsed. The same could also happen, if the legislature fails to pass a new constitution by the end of three consecutive terms. This way, time and again, constitution amendments are voted in and then withdrawn by the legislatures at a later date. What all this means is that, despite having the highest constitutional authority, the judges have no control over the actions of legislators.