Constitution show that judicial review can be excluded in appropriate cases
as a matter of policy. (ii) That validation of elections is a process well-known
to democratic forms of Government (iii) That a law may be constitutional
even if it relates to a single individual if on accounts of special reasons, the
single individual could be treated as a class by himself (iv) That it is clear
from Articles 326 and 327 of the Constitution that the Constitution makers
thought that as a master of high policy elections ought to be dealt with by the
Constitution itself and not by ordinary legislation passed within the
framework of the Constitution. How much of election should be dealt with by
the Constitution and how much should be relegated to ordinary legislation is
not a matter for the courts to decide. If the constituent body thought that the
offices of the Prime Minister and the Speaker are important enough to be
dealt with by the Constitution itself in the matter of their elections to the
Parliament, it cannot be said that the decision is frivolous or without
jurisdiction ; and that (v) The contention that the 39th Amendment is not an
exercise of constituent power should not be allowed to be taken up because
every possible aspect of the matter was argued in Sankari Prasad's case,
Sajjan Singh's case and the Fundamental Rights case. The basic question
involved in these cases was as to what is the meaning of the word
'amendment'. The argument now is that there is a further limition on the
amending power. If it is the same question and has been decided, it cannot be
reopended by saying that the question has a new aspect which was not
considered then. If the question is new the principle of the Fundamental
Rights case cannot be extended any further. Therefore, the constituent power
must be held to be a plenary power on which the only limitation is as regards
the inviolability of the basic structure.
656. The learned Solicitor-General who continued the unfinished
arguments of the learned Attorney-General urged that (i) Article 14 is
founded on a sound public policy recognised and followed in all civilised
States. The exclusion of judicial review does not by itself mean the negation
of equality. Article 31-B which on the face of it denied equality to different
sections of the community attained the ideal of economic justice by bringing
about economic equality. Article 33 also shows that the demands of public
problems may require the adjustment of Fundamental Rights for ensuring
greater equality (ii) What a Constitution should contain depends on what
permanency is intended to be accorded to a particular provision included in
the Constitution. (iii) Exclusion of judicial review is at least permissible in
those fields where originally the Constitution did not provide for or
contemplate judicial review. (iv) If the election law does not apply as it ceases
to apply by virtue of Article 329-A (4) it is the function of the legislature to
declare whether or not a particular election is good or bad: and that Rule of
Law is not a part of the basic structure of the Consitution and apart from
Article 14, our Constitution recognises neither the doctrine of equality nor
the Rule of Law.
657. Shri A.K. Sen who appears for Smt. Indira Gandhi defended the 39th
Amendment by contending that : (i) The Amendment flows the well-known
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