Power of the Supreme Court in exercising Judicial Restraint on Constitutional Amendments brought to Government Policies

This article is written by Ms. Shanvi Aggarwal, student at School of Law, Christ University, Bengaluru.

Whether the Supreme Court of India has the power to exercise Judicial Restraint in matters of far-reaching Government policies brought through Constitutional Amendments?

The critical analysis of the Supreme Court’s power to exercise judicial restraint in matters of far-reaching government policies brought through constitutional amendments is on the following grounds:

Doctrine of Ultra Vires

The doctrine of ultra vires means that it is only within their true limits that power can be validly exercised. Every power has its own legal limits. As a consequence, an ultra vires administrative order or decision is regarded as void and is deprived of legal effect.[1]

In Bhim Singh v. Union of India[2], it was held that the Court can strike down a law or scheme on the basis of it being ultra vires or unconstitutional but not on the basis of its viability. In B.P. Singhal v. Union Of India[3], no permissibility was given to exercise public power in a way that is mala fide and arbitrary, and it was held that the courts may interfere in such exercise where reasons given for the exercise of such power are irrelevant; or where self- denial vitiates the exercise of power on wrong appreciation of full amplitude of the power or where the decision is arbitrary, discriminatory or mala fide.

Courts are permanent guardians of the Constitution. Government is nothing but an aggregation of individuals. The jurisdictional principle provides for the role of courts to keep bodies within authority and jurisdiction. Furthermore, excess or abuse of statutory jurisdiction is ultra vires and thus quashed or prohibited. The authority may be directed to act according to law, or not to act in excess of its jurisdiction. Acting ultra vires and acting without jurisdiction have essentially the same meaning.[4]

Suprema Lex – Unconstitutional Amendment

The Court in Indira Gandhi v Raj Narain[5] held that none of the three organs of the Government can usurp the essential functions of the other organs. It was so stated for the reason that it constitutes a part of the ‘basic structure’ of the Constitution or one of its ‘basic features’, which cannot be impaired even by amending the Constitution. The court would strike down such an amendment as unconstitutional and invalid, if made.

Sentinel of Qui Vive

The court should, above all, rise up and respond in a given situation as and when necessitated and effectively play its role in accommodating the Constitution to changing circumstances and enduring values. Further, the Court as a ‘sentinel of the qui vive’ ought to preserve and safeguard the Constitution. It also ought to protect and enforce the fundamental rights and other constitutional mandates which constitute the inviolable rights of the people as well as those features, which form its basic structure and are considered to be even beyond the reach of any subsequent constitutional amendment.

It is so stated as the most essential constitutional duty of the court is to strike a delicate balance between the legislature and the judiciary. The perception of self-evolved judicial restraint and the idea of jurisprudential progression have to be juxtaposed for a seemly balance. There is no straight-jacket formula for determining what constitutes judicial restraint and judicial progressionism. Therefore, the middle course between these two views is the concept of judicial engagement so that the concept of judicial restraint does not take the colour of either judicial abdication or judicial passivism. Judicial engagement requires that the Courts maintain their constitutional obligation to remain the sentinel on qui vive.

In Hipperson v. Electrical Registration Officer for the District Newbury[6], it was noted that the Courts tend to give a strict construction to any enactment curtailing franchise as the voting rights lie at the root of parliamentary democracy, being regarded as a ‘basic human right’.

Public Interest

In General Manager, Northern Railway v. Sarvesh Chopra[7], the Bench headed by acting Chief Justice A.K. Sikri stated that, “where an issue involving public interest had not engaged the attention of those concerned with policy, or where the failure to take prompt decision on a pending issue is likely to be detrimental to public interest, courts will be failing in their duty if they do not draw attention of the authorities concerned to the issue involved in appropriate cases”. The court was hearing a PIL demanding grant of rail travel concession to all persons suffering from a disability, thus a matter of public interest.

Right to Judicial Review

The court primarily performs its functions in order to enforce the law, the basis of which lies in common law.  Nearly all cases in administrative law arise from an Act of the Parliament. Where the court squashes an order made by a minister under an Act, it typically uses it common law power to declare that the Act did not entitle the minister to do what he did and that he was in some way exceeding or abusing his power.[8] Therefore, judicial review is an integral part of the Constitution of India, as its basic feature, and cannot be excluded even by a constitutional amendment. Consequently, neither statutory nor constitutional provisions can oust the jurisdiction conferred by the Constitution in the High Courts and Supreme Court.[9]

Separation of Powers

There is a striking difference between parliamentary and constitutional sovereignty. The Constituent Assembly drafted the Constitution of India and in contrast to Acts drafted by the Parliament. For the preservation of liberty and prevention of tyranny, the separation between Legislature, Executive and Judiciary has been accepted. In I.R. Coelho v. State of Tamil Nadu[10], the duty of the Supreme Court to uphold constitutional limitations was highlighted. There is always a presumption of constitutionality and the onus is on the person who impugns the validity of the Act. But the presumption of constitutionality cannot certainly be carried to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals to hostile or discriminating legislations.[11]

Therefore, it is observed that the Supreme Court of India has the power to exercise judicial restraint on constitutional amendments brought to far-reaching government policies.



[1] M.P. Jain & S.N. Jain, Principles Of Administrative Law Vol. 2 (28th ed. 2017).

[2] (2010) 5 S.C.C. 538 (574) (India).

[3] (2010) 6 S.C.C. 331 (India).

[4] Lord Diplock, Judicial Control of Government (1979).

[5] A.I.R. 1975 S.C. 2299 (India).

[6] (1985) Q.B. 1060 (United Kingdom).

[7] (2002) 4 S.C.C. 45 (India).

[8] Wade & Forsyth, Administrative Law p.33-34 (9th ed. 2005).

[9] M.P. Jain, Indian Constitutional Law, Chapters I AND XLI (2003).

[10] (2007) 2 S.C.C.1(India).

[11] C.D. Jha, Judicial Review Of Legislative Acts p.384 (1st ed. 1974).


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