Q. What is judicial review ? Critically examine about the doctrine of basic structure as enunciated by the Supreme Court of India. [2016]
Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. On examination, if they are found to be violative of the Constitution (ultra vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the judiciary. Consequently, they cannot be enforced by the Government.
The term judicial review is nowhere mentioned in the Constitution. However, the fact that India has a written constitution and various provisions of constitution explicitly confers the power of judicial review on the Supreme court and High court. e.g.
- Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void.
- Article 32 guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose.
- Article 131 provides for the original jurisdiction of the Supreme Court in centre–state and inter-state disputes.
- Article 132 provides for the appellate jurisdiction of the Supreme Court in constitutional cases.
- Article 136 authorises the Supreme Court to grant special leave to appeal from any court or tribunal (except military tribunal and court martial).
The constitution has established the supreme court as the interpreter of Constitution. It involves the judicial review. Further, the Supreme Court has declared (Keshvananda Bharti case and in I R Coelho case)the power of judicial review as a basic feature of the Constitution or an element of the basic structure of the Constitution. Hence, the power of judicial review cannot be curtailed or excluded even by a constitutional amendment.
The judicial review can be classified into the following three categories:
- Judicial review of constitutional amendments.
- Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations.
- Judicial review of administrative action of the Union and State and authorities under the state.
Importance of the judicial review:
- To uphold the principle of the supremacy of the Constitution.
- To maintain federal equilibrium (balance between the Centre and the states).
- Suppose, the central government makes a law, which according to some States, concerns a subject from the State list. Then the States can go to the Supreme Court and if the court agrees with them, it would declare that the law is unconstitutional.
- To protect the Fundamental Rights of the citizens.
Scope of Judicial review: The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or in the High Courts on the following three grounds.
- It infringes the Fundamental Rights (Part III),
- It is outside the competence of the authority which has framed it, and
- It is repugnant to the constitutional provisions.
Together, the writ powers and the review power of the Court make judiciary very powerful. In particular, the review power means that the judiciary can interpret the Constitution and the laws passed by the legislature. Many people think that this feature enables the judiciary to protect the Constitution effectively and also to protect the rights of citizens.
The doctrine of ‘basic structure’:
- The basic structure doctrine is an Indian judicial principle, most notably propounded by Justice Hans Raj Khanna, that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.
- This doctrine was first laid down by the Kesavananda Bharati case (1973). Which said said that Art 368 does not enable Parliament to alter the ‘basic structure’ of the Constitution.
- Since then the supreme court from the various judgements added various elements to the basic structure of the constitution. e.g. Supremacy of the Constitution, Sovereign, democratic and republican nature of the Indian polity, Secular character of the Constitution, Judicial review etc.
- Such doctrine was brought in by the supreme court to ensure that a party coming into power with absolute majority don’t change the basic nature of the constitution by amending it.
- This doctrine has certainly strengthen our judiciary which is the guardian of the constitution.
- Issues with the doctrine of basic structure:
- What constituted the basic structure has not been clearly defined and remained an open question.
- In Minerva Mills judgment, the Court held: “since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of the Constitution and, therefore, the limitations on that power cannot be destroyed. ”
- The court, however, did not show where in the Constitution, the power of amendment had been said to be a qualified or limited power except for the procedural requirements laid down in article 368.
- In some cases, there is a difference of opinion among the Judges as regards a particular element forming an element of the basic features. For example,
- Chief Justice Ray did not find it possible to hold the concept of free and fair elections as a basic feature whereas Justice Khanna, in the same case, found this principle to be an element of the fundamental features of the Constitution.
- Justice Chandrachud did not subscribe to the view that the Preamble to the Constitution holds the key to its basic structure.
- Thus, so far there has been no consensus in this regard among the Judges and no majority judgment is available laying down the features of the Constitution that may be considered ‘basic’.
- The Basic Features Doctrine of the Supreme Court, in addition to its vagueness and lack of clarity is open to more fundamental objections.
- Every word of the Constitution should be understood in its normal, natural meaning. In the Kesvananda Bharti case itself, the Supreme Court has said that unless otherwise indicated, every word is supposed to have been used in the Constitution in its normal or ordinary connotation and should be given the plain common sense meaning.
- Unfortunately while interpreting the Constitution and the laws, the Supreme Court does not always do that.
- Constitution of a country is its foundational law and lays down the basic features of its polity. Every provision of the Constitution is the basic law of the land. Its provisions can hardly be so divided as to make some parts of the Constitution basic and others peripheral.
- The Constitution of India does not contain any provision in regard to basic features. There is nothing to suggest that the Constitution-makers wanted any provisions of the Constitution to be absolutely unamendable.
- In fact, all the evidence is to the contrary. It was repeatedly declared in the Constituent Assembly and elsewhere by Nehru, Ambedkar and others that they did not wish to bind the succeeding generations, that, to use Nehru’s words, “if you make anything rigid and permanent you stop a nation’s growth, the growth of a living, vital, organic people”.
- If the sovereign people through their representatives cannot bring about desired change, who will? What the Supreme Court has done is to assume to itself a power of veto on all constitutional amendments.
- In effect, the court says that it will decide in each case whether to permit Parliament to amend the Constitution.
- What the Supreme court said about Parliament can also be applied to the supreme court itself. The supreme court can’t “under exercise of limited power (judicial review and interpreting the constitution) enlarge that very power into an absolute power”.
- Just as power to amend is said to be a limited power only to amend, the Supreme Court’s own power to interpret and declare the law can’t be extended to making or rewriting the provisions of the constitution.
Thus, the doctrine of basic structure is open to many questions. But, after all these years, It is generally accepted view that the idea of Constitutionalism has received impetus through the doctrine of basic structure. It certainly works as a check against the arbitrary amendment of the significant provisions of the constitution.
