This article is authored by Fagun Sahni and Naimish Tewari, students at Symbiosis Law School, Noida. This article attempts to encapsulate the power of judicial review vested with the High Courts to evaluate a Constitutional Amendment, and the conundrum arisen as a result of territorial limitations and conflicting judgements which may potentially threaten the singularity of the Constitution leading to multiple interpretation being in force at the same time.
Abstract
The Suprema Lex of the Indian nation-state, the Constitution of India, is a living organism that grows, changes, and adapts itself with the evolution of societal, economic and political norms of the Indian state of nature. What makes this document a living Constitution are its provisions of amendment which allow it to keep pace with the changing needs of the country. This power to amend the Supreme Law of the Land resides with the Parliament of India which is only permitted to exercise this power in consonance with the provisions of the Constitution and only to the extent that it does not abrogate the basic structure‘ of the Constitution. Even though this doctrine has been laid down by the Supreme Court of India in its authority as the final arbiter of law in the Indian domain, the respective High Courts of each State hold no less power in interpreting the Constitutional provisions and evaluating the Constitutionality of the Parliament or State Legislature made laws.
However, a High Court‘s order is restricted by territoriality, thus being enforceable within the bounds of the State over which it presides, unlike the Supreme Court which is the Apex Court of the country and has jurisdiction over every inch of the Indian territory.
This article attempts to encapsulate the perplexing conundrums and confounding paradoxes that will arise after the declaration of a ―Constitutional amendment‖ as violative of the Basic Structure by a ―High Court and attempts to reach a possible conclusion as to whether the conferment of such power to the High Courts is viable and if it is, what is the aftermath of such a declaration by a High Court.