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.