Ouster Clause: Legislative Blaze and Judicial Phoenix

Abstract

If constitutionalism denotes obedience to the Constitution, the scheme for enforcement of obedience and invalidation of disobedience should be found in the Constitution itself. It is important that this scheme be clear and the task of enforcement be vested in a constitutional body. In such a situation, the question of custodianship i.e., who will ensure the rule of constitutionalism assumes prime importance, as any ambiguity regarding the same will result in conflicts uncalled for between legislature and judiciary. This conflict intensifies when judiciary determines the constitutionality of the legislations and the legislature defends by placing it in the „ouster clauses‟ within the Constitution to exclude the judicial determination. Judiciary counters by nullifying the legislative attempts through innovative interpretation. An attempt is made to study Article 31 B, the most prominent ouster clause in the Constitution of India barring judicial review of legislations and how the Indian judiciary retaliated to such legislative attempts and effectively curbed them. The study outlines the historical reasons which necessitated the insertion of Article 31 B in the Constitution and analyses the myriad implications of such an ouster clause within the Constitution. The constitutional basis of judicial review is studied to audit the justifiability of the open ended Ninth Schedule along with Article 31 B. A comparison between Article 31 B and the other ouster clauses namely Articles 31 A and 31 C is also made, bringing out the effect and scope of Article 31 B. The study covers a critical survey of judicial pronouncements from 1951 to 2007.