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3.6] Judicial Review and Basic Structure Doctrine

Judicial review is the power of judiciary to review acts of parliament and acts of executive. The power of judicial review, part of the system of checks and balances, aims to ensure rule of law, constitutionalism, and protect fundamental rights in a country.

In Constitution of India, primarily three articles deal with the subject of judicial review i.e. article 13, article 32 and article 226.

Article 13 states that any law that is inconsistent with or in derogation of the fundamental rights shall be void. This gives the judiciary the power to review and strike down laws, violative of fundamental rights. Further, article 32 provides the right to individuals to move the Supreme Court to enforce their fundamental rights. This includes the power of the Supreme Court to review laws and executive actions to ensure fundamental rights of the aggrieved. Lastly, article 226 empowers the High Courts to issue certain writs for the enforcement of fundamental rights and for any other purpose, enabling judicial review at the state level.

1. Origin of Judicial Review System

Judicial review is an invention of USA, declared by Justice Marshall in Marbury vs Madison case, 1803. In this case, for the first time the Supreme Court declared a law passed by Congress unconstitutional. This established the doctrine of judicial review. This principle allows the Supreme Court to declare an act of congress/parliament void if it is inconsistent with the constitution.

Since India has the provision of judicial review in constitution, i.e. the power to review the acts of parliament, it denotes that judiciary is superior to parliament. Thus, India is an example of judicial supremacy, and not parliamentary supremacy. It is also to be noted that the supremacy of constitution and supremacy of judiciary are one and the same thing because constitution is supreme but since it is interpreted by the court, ‘constitution is what judges say’.

2. Comparison with British Judicial System

Contrary to Indian and American system, Britain is an example of supremacy of parliament.

The United Kingdom does not have a single written document that makes the constitution, like many other countries. Instead, it has an uncodified constitution, which means its constitutional framework is based on a combination of written and unwritten sources. These sources include acts of parliament, common law, or even certain conventions.

In Britain, judiciary have no power to review acts of parliament. In the absence of written constitution, there is no difference between constitutional law and ordinary law. Consequently, the British judiciary only reviews the act of executives and not of parliamentarians.

In USA, since written constitution exists, there is a limitation on congress with respect to law making. Hence in USA, legislative supremacy does not exist. Constitution provides for checks and balances.

3. Evolution of Judicial Review in India

In case of India, it appears that constituent assembly envisaged parliamentary supremacy on lines of British system. Pandit Nehru used to believe that India has the concept of ‘supremacy of parliament’ to the extent that there is no limitation even on the amending power of Parliament. The early period was also the phase of strong government and passive judiciary. 

In later period, in Keshavanand Bharati case 1973, Supreme Court asserted that Parliament does not have unlimited powers. The judiciary can strike down the laws of parliament if it infringes the ‘basic structure’ of Indian constitution.

4. The Doctrine of Basic Structure.

This is an invention of the Indian Judiciary. It is normally understood that judiciary can only review the ordinary laws. Judiciary cannot review the amendment to constitution. Amendment is the feature of constitution itself, and an amendment represents will of the people. Since democracy abides by the principle of popular sovereignty, judiciary cannot strike down constitutional amendment.

We can say that the original constitution envisaged this type system in India. As said by Ambedkar, “If those who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they cannot obtain even (that)…, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.”

However, in later period judiciary have invented the doctrine of basic structure. Established in 1973 Keshavananda Bharati case, the doctrine of basic structure checks the validity of constitutional amendment. It is to be noted that ordinary law can be questioned on the basis of the constitution itself (written provisions) and there is no need to evoke the basic structure doctrine. The constitutional amendments, however, needs to be tested on the basis of ‘basic structure’.

What this ‘basic structure’ constitutes? it is not written in the constitution. It is to be determined by judiciary from time to time.

To sum up, Indian judiciary have following powers of judicial review

  1. To review the acts of executive
  2. To review the laws passed by parliament
  3. To review the constitutional amendments done by parliament

5. Evolution of Basic Structure Doctrine

As discussed above, basic structure is a doctrine of judicial review, applied by higher judiciary in India to examine validity of constitutional amendments.

Reasons for Emergence of Basic Structure Doctrine

The evolution of the basic doctrine should be understood in context of the initial judicial disputes in India between fundamental rights and directive principles. As discussed earlier, Part 3 of the Indian constitution (fundamental rights) and Part 4 (DPSPs) are based on contradictory principles. Part 3 is based on the ideology of liberalism and gives primacy to individual rights. Part 4, on the other hand, is based on philosophy of socialism and gives primacy to the interest/rights of society, even at the cost of individuals.

In addition to underlying philosophies, the contradictory provisions of constitution also contributed to the conflict between the two parts of constitution.

Fundamental rights are guaranteed by constitution, including the right to enforcement of fundamental rights. Under article 13, it is a constitutional obligation of judiciary to declare any law as void in case it abridges any of the fundamental rights in part 3. According to article 32, it is duty of the supreme court to ensure that the rights in part 3 are enforced. Hence the court has been given power to issue writs.

On the other hand, article 37 mentions that the provisions in part 4 (DPSPs) are not enforceable by any court. Thus, while it is duty of supreme court to see that fundamental rights are enforced, it is not same when it comes to directive principles.

Thus, various attempts by government to implement part IV of constitution, the infringement of fundamental rights in the process, the judicial intervention to protect these rights, the attempts of government to limit judiciary through constitutional amendment, and the power of judiciary to review the acts of parliament… all of this together led to the innovation of the doctrine of basic structure by Indian judiciary. This, in effect changed the nature of Indian democracy from parliamentary sovereignty to judicial supremacy. The following topic discusses this evolution of basic structure doctrine in detail.

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6. Important Events in Evolution of Basic Structure Doctrine

Champakam Dorairajan Case (1951)

In this case, Champakam Dorairajan, a brahmin woman, challenged the Communal Government Order (G.O.) of Madras, which reserved seats in educational institutions for different communities. The case argued that this reservation violated her fundamental right to equality under Article 15(1) of the Indian Constitution.

In response, the Supreme Court held the Communal G.O. being inconsistent with the provisions of article 29 (2) in Part III of the Constitution is void under article 13. In the opinion of the court, “The directive principles of State policy laid down in Part IV of the Constitution cannot in any way override or abridge the fundamental rights guaranteed by Part III. On the other hand, they have to conform to and run as subsidiary to the fundamental rights laid down in Part III.”

1st Constitutional Amendment

The Champakam Dorairajan case highlighted the need to reconcile fundamental rights with socio-economic reforms (DPSPs). To safeguard laws related to social justice from judicial scrutiny, the 1st Amendment was introduced.

The amendment added Article 15(4) to the Constitution, allowing the state to make special provisions for the advancement of socially and educationally backward classes or Scheduled Castes and Tribes.

The amendment also added the Ninth Schedule to Indian constitution, which listed various laws. Further article 31(B) was also amended to say that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed to be void, on the ground that it takes away the rights mentioned in part III.  This was done to protect land reform and other laws from judicial review.

(*The amendment also made changes to other parts of constitution, but we’re not mentioning here since they’re not much related to matter at hand.)

Shankari Prasad Case (1951)

In this case, the validity of the 1st Constitutional Amendment was challenged in the Supreme Court. Shankari Prasad Singh Deo argued that the amendment violated fundamental rights.

It was the first case on the subject of amending power of parliament. The Supreme Court upheld the 1st Amendment and ruled that the power of parliament to amend the constitution under Article 368 includes the ability to amend fundamental rights.  It implies that there are(were) no limitations on the power of parliament to amend the constitution.

It is suggested that this was the era of ‘passive judiciary’. Since the elected government was strong, Judiciary avoided confrontation with executive.

Golakhnath vs State of Punjab, 1967

In 1967, a case was filed by Henry and William Golak Nath, who owned substantial farmland in Punjab. They challenged the Punjab Security and Land Tenures Act, which aimed at land reforms and placed a ceiling on land holdings, leading to the acquisition of some of their land by the government. The key issue under consideration was, whether the Parliament had the power to amend part III of the constitution, which includes the fundamental rights.

In a landmark 6-5 decision, the Supreme Court ruled that parliament could not amend the fundamental rights. The court held that fundamental rights are “transcendental” and “immutable,” and hence, beyond the amendment powers of the parliament under article 368.

This was the 1st example of judicial activism. It marked a significant departure from earlier rulings (like Shankari Prasad case), where it was held that Parliament could amend any part of the constitution, including fundamental rights.

It is suggested that judiciary could take such a stand since the ruling government was relatively weak. We can note that year 1967 marks the beginning of breakdown of hegemony of Congress. And therefore, judiciary could make such pronouncement. The verdict of judiciary was criticized by people. Judiciary was accused for being elitist, putting restrictions in India’s ‘social revolution’. The decision created a constitutional impasse (stalemate), as it restricted parliament’s ability to implement socio-economic reforms (give effect to DPSPs) through amendments that could affect fundamental rights.

24th Constitutional Amendment (1971)

In response to the Golakhnath judgment, which restricted parliament’s power to amend fundamental rights, the government sought to restore this power through constitutional amendments.

Through 24th constitutional amendment, article 13 and 368 were amended. It added clause 13(4), saying that ‘nothing in this article shall apply to any amendment to this Constitution made under article 368.’

In article 368, it changed the title of the article from ‘Procedure for amendment of the Constitution’ to ‘Power of Parliament to amend the Constitution and procedure therefor’.

In addition to making changes to article 13 and 368, the amendment also made it mandatory for president to give ascent to the amendment. Thus, president lost the power of ‘absolute veto’ in case of constitutional amendments. (The pocket veto was still retained by the president).

25th Constitutional Amendment (1971)

Following the 24th Amendment, the government sought further amendments to address socio-economic reforms, particularly in the context of property rights and Directive Principles of State Policy.

The amendment added article 31 C which stated that – if any law is made to give effect to the objectives of article 39(b) of 39(c) [DPSPs], such law will not be challenged on the ground that it contravenes Art 14,19 and 31. And such law cannot be questioned in any court.

The 24th and 25th amendments aimed to prioritize DPSPs over certain fundamental rights, particularly in implementing land reforms and other socio-economic measures. In process they also sought to restore the balance between the powers of parliament to amend the constitution and the power of judiciary to review these amendments.

Keshavananda Bharati Case (1973)

While the things appear to be settled, in 1973, Keshavananda Bharati, the head of a Hindu matha (monastery) in Kerala, challenged the Kerala government’s attempts to impose land reforms which affected the matha’s property. He filed a petition against the Kerala Land Reforms Act, questioning the validity of the 24th, 25th, and 29th Constitutional Amendments which sought to curtail property rights and reinforce Parliament’s amending powers.

This case once again raised the question whether parliament has unlimited power to amend the constitution, including fundamental rights.

The Supreme Court delivered a landmark judgment on April 24, 1973, with a thin 7-6 majority.

The Court upheld the validity of the 24th and parts of the 25th Amendments. The provision in 25th amendment which said that ‘any such law cannot be questioned in any court’ was struck down. The judiciary agreed that the parliament has unlimited power to amend the constitution, except that it cannot alter or destroy the ‘basic structure’ of the constitution.

According to judiciary, “the basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure. (These cannot be catalogued but can only be illustrated).

  1. Supremacy of the Constitution;
  2. Republican and Democratic form of Government;
  3. Secular character of the Constitution;
  4. Separation of powers between the Legislature, the executive and the judiciary;
  5. Federal character of the Constitution;
  6. Sovereignty of the country;
  7. The dignity of the individual;
  8. The unity and the integrity of the nation.

42nd Constitutional Amendment

During the Emergency period (1975-1977), the Indira Gandhi government sought to strengthen the executive’s powers and limit judicial review through the 42nd Constitutional Amendment, often referred to as the “Mini-Constitution” due to its extensive changes.

The amendment was done to article 31C and it extended the protection of laws implementing directive principles to cover all of them, not just Articles 39(b) and 39(c).

Govt. also added clause (4) in Art 368 saying that no amendment of the constitution shall be called in question in any court on any ground.

Any ground means not even on the ground of ‘basic structure’. Any court denotes even Supreme Court.

It also added clause (5) for same article 368(5) – For removal of doubts, there is no limitation whatsoever on the amending power of parliament.

Through this amendment, the government destroyed the harmony. The amendment made fundamental rights subordinate to directive principles. The amendment was seen as an attempt to curtail judicial independence and enhance the powers of the Parliament and executive, undermining the checks and balances of the Constitution.

Minerva Mills Case (1980)

Minerva Mills Ltd., a textile company, challenged the constitutionality of certain provisions of the 42nd Amendment that severely restricted judicial review and altered the balance between Fundamental Rights and Directive Principles.

Once again, in a landmark judgment, the Supreme Court struck down key sections of the 42nd Amendment, reinforcing the “basic structure doctrine” established in the Keshavananda Bharati case.

Articles 368(4) and 368(5), which barred judicial review of constitutional amendments, were declared unconstitutional.

The change in article 31C that extended the protection to all the directive principles (beyond Articles 39(b) and 39(c)) was struck down. The Court held that Directive Principles could not override Fundamental Rights beyond the specific provisions mentioned in the original Article 31C.

The Minerva Mills case reaffirmed the “basic structure doctrine,” emphasizing that judicial review is an essential feature of the Constitution’s basic structure. The court also asserted that balance and harmony between Fundamental Rights and Directive Principles form part of the Constitution’s basic structure. ,

IR Coelho vs State of Tamil Nadu 2005

In this case, the court opined that the doctrine of basic structure is applicable with respect to the laws placed under 9th schedule also. However, it will be applied only for the laws which are placed after the day of the judgement of Keshavanand Bharati case (24th April 1973) and not for legislations before that.

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7. Criticism of Basic Structure doctrine.

The doctrine of basic structure is often criticized as an extreme example of judicial creativity. Instead of limiting itself to the written provisions, judiciary is trying to establish ‘the metaphysical elements’ of the constitution.

It is also noteworthy that the doctrine came into existence by the vote of just one judge. Six judges on the bench were against and seven were in favor.

Since Judiciary have not given the exhaustive list of what constitutes basic structure, it indirectly indicates that judiciary enjoys discretionary powers.

On the other hand, it is also suggested that there is no need to give exhaustive list, better to keep the provision as safety valve.

Logic behind basic structure doctrine

The fundamental logic is the difference between amendment and rewriting of the constitution. Even when constitution is amended, we should be able to understand the original constitution. Parliament cannot be equated with constituent assembly. Judiciary clarified that even when amendment is passed in both the houses with unanimity and absolute majority, then also amendment has to pass the test of basic structure. Parliament represents political majority whereas constituent assembly represented general will / popular sovereignty.

We can say that such an activism by judiciary was indeed desirable because executive was bent on destroying the constitution. Given the challenging times, judicial activism was needed against the overreach by executive. This innovation by Indian judiciary has ensured the survival of democracy in India. Had Judiciary not intervened, India would have gone in the way of other third world countries. Hence it was a necessary evil. 

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