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Judicial Review & Basic Structure Doctrine.

Judicial review.

In Constitution of India, Article 13 deals with Judicial review. Judicial review is a judiciary’s power to review acts of parliament and acts of executive. It aims to ensure rule of law, constitutionalism, checks and balances, protect fundamental rights.
Judicial review is a invention of USA, declared by Justice Marshall in Marbury vs Madison case, 1803. In any country, where judiciary has power of judicial review over the acts of parliament, that country will automatically have ‘the principle of supremacy of judiciary.
Supremacy of constitution and supremacy of judiciary are one and the same thing because constitution is supreme but ‘constitution is what judges say’.

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Comparison between Britain and USA.

Britain is an example of supremacy of parliament. In Britain, judiciary will have no power to review acts of parliament. Because in the absence of written constitution, there is no difference between constitutional law and ordinary law. In Britain judiciary only reviews the act of executives.

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.

Case of India. During the time of Pandit Nehru, there was lack of clarity. Pandit Nehru believed that Indian system is modelled on British system. He used to believe that India has the concept of ‘supremacy of parliament’. Supremacy of Parliament to the extend that there is no limitation even on the amending power of Parliament. It was also the phase of passive judiciary. However in Keshavanand Bharati case, Supreme Court asserted that Parliament does not have unlimited powers.

Principles/Doctrines of Judicial Review

To examine the constitutional validity of an act, judiciary in India follows following principles.
1| Presumption in favor of constitutionality of law.
/This also implies – no suo moto JR of laws. [ However in case of violation of fundamental rights only, judiciary goes for the application of suo-moto (example of judicial activism).]
2| The doctrine of liberal interpretation. e.g. Maneka Gandhi case.
3| Literal interpretation. e.g. A.K. Gopalan case.
4| Doctrine of reading down. e.g. Abolition of Section 377 of IPC. Part of law is narrowed down while other provision continue to operate.
5| Doctrine of ab-initio – Some laws become invalid from the date constitution comes into existence if they are in contradiction.
6| Doctrine of eclipse (shadow) – Judiciary may adopt the doctrine of eclipse by which a law passed by duly constituted legislature is kept in a shadow. When? When its principles appear in conflict with the constitution. However when required, it can be validated. Doctrine of eclipse was declared in Bhikhaji Narain vs State of MP case 1955. With respect to post-constitutional laws, doctrine of eclipse was pronounced in State of Gujarat vs Ambika Mills case.
7| Doctrine of severability. It means entire law is not declared null and void but only a part of law which seems inconsistent are taken out.
Doctrine of colorable legislation and doctrine of pith and substance. What cannot be done directly, cannot be done indirectly. It will be treated as the legislative fraud.
Doctrine of Prospective overruling. Taken from USA, for the first time applied in Golakhnath case 1967.

8| Doctrine of basic structure. Invention of Indian Judiciary. It makes Indian Supreme Court, the strongest court in the world. Why? In no other country, judiciary has power to review amendments of the constitution. Judiciaries can only review the ordinary laws. Amendment is the feature of the constitution itself. Doctrine of basic structure allows judiciary to question the constitution itself. /Judiciary has assumed the role of constituent assembly.
Doctrine of basic structure is to check the validity of constitutional amendment ONLY. Why? Ordinary law can be questioned on the basis of the Constitution (written provisions) whereas amendment needs to be tested on the basis of ‘basic structure’. It is not written in the constitution, it is to be determined by Judiciary from time to time.

9| Doctrine of due process of law & procedure established by Law.

10| Doctrine of Waiver.
In India, Judiciary does not accept the doctrine of waiver. Doctrine of waiver is accepted in USA. Why in USA? People have absolute rights in USA. Hence state cannot limit the rights, State can only request. The person can waive off his rights voluntarily in the wider interest of the society. /Waiver means person himself gives away his right.
Whether Supreme Court accepted Doctrine of waiver in case of passive euthanasia? NO. Passive euthanasia is linked to right to ‘die with dignity’ which itself is a part of ‘right to life’ under Art 21.
In India, doctrine of waiver has not been accepted because of poverty and vulnerabilities.

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The Doctrine of Basic Structure.

It is a doctrine of Judicial Review applied by higher judiciary in India to examine validity of constitutional amendments.


Reasons for Emergence of Doctrine.

Evolution of the doctrine to be understood in context of the initial judicial disputes in India between fundamental rights and directive principles.
Part 3 (FRs) and Part 4 (DPSP) are based on contradictory philosophies. Part 3 is based on ideology of liberalism which gives primacy to the rights of individual. Part 4 based on philosophy of socialism, which gives primacy to the interest of society, even at the cost of individuals.
Conflict also arose because the two contradictory provisions
Fundamental Rights are the rights, guaranteed by constitution. Even right to enforcement of fundamental rights is itself a fundamental right.
1] Art 13 – It is a constitutional obligation of judiciary to declare any law as void in case it abridges any of the FRs given in Part 3.  
2] Art 32 – It is duty of the Supreme Court and FR of the citizen that the rights are enforced. Hence SC has power to issue writs. 
3] Art 37 – It mentions that the provisions in part 4 (DPSP) are not enforceable by any court. (They are not automatically enforceable like FR. However they become enforceable if parliament brings law.)

Are all the fundamental rights in part 3 automatically enforceable?

NO. Enforcement of the rights require parliament to make law for the purpose like Art 17, 23, 24.
Still Art 37 mentions that governments will consider 1] These principles fundamental in governance of the country. 2] It shall be duty of the state to apply these principles in making laws.

In constituent assembly, there were some members who were dissatisfied with the non-enforceable nature of part 4. Since we did not have enough resources, if social and economic rights had been made automatically enforceable, it would have created constitutional crisis. Ambedkar assured that there will be political sanctions. It means no govt. can overlook these rights.
Ideally there should not be non-enforceable features in the constitution which is the supreme law of the land. Hence all features of the constitution should be enforceable. Hence it is a rare feature.
In order to ensure that all parts of the constitution remain relevant, Judiciary goes for the application of doctrine of ‘harmonious construction’.

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1] Champakam Dorairajan vs State of Madras 1950.

[First case involving the dispute between DPSP and FRs.]
Reservation in educational institutions implemented by the state of Madras was challenged in the case. Champakam Dorairajan, a Brahmin women challenged the continuation on the ground of Art 14. As per Art 13(1), it becomes null and void ab-initio.
Government put forward its position that as per Art 46, it is a duty of the government to take steps for the promotion of educational and economic interests of the weaker sections. It mentions state will take ‘special care’.

Problem for judiciary?
Art 14 – constitutionally guaranteed. Art 46 – is a directive. Judiciary suggested that govt. cannot abridge fundamental right by ordinary law. It can be done only by amending the constitution. Govt. has brought 1st Amendment Act, which introduced clause 4 in Art 15. 
Art 15(4) – State can make special provision for advancement of any ‘socially and educationally’ backward classes of citizens.
Art 31A – it provided exception to Right to Property. It provides for saving of certain laws.
Art 31B – it added 9th schedule. It has been mentioned that no act or regulation put into 9th schedule shall be called into question on the ground that it abridges any of the fundamental rights. 9th schedule used to known as ‘blackhole’ of the constitution.

2] Shankari Prasad vs UOI case 1951

It was the first case on the subject of amending power of parliament. The first amendment act was challenged. Supreme court upheld the validity of 1st amendment act. It implies that there are no limitations on the power of parliament to amend the constitution.
This was the era of ‘passive judiciary’. Judiciary avoided confrontation with Nehru.

3] Golakhnath vs State of Punjab 1967.

It is a 1st example of judicial activism.  It led the foundation of the doctrine of basic structure.
Judiciary held that fundamental rights are ‘sacrosanct’, cannot be diluted even by amendment. [1967 marks the beginning of breakdown of hegemony of Congress. And therefore judiciary could make such pronouncement. ]
People criticized the approach of judiciary. Judiciary was accused for being elitist. Putting restrictions in India’s ‘social revolution’.

4] Government’s response.
Govt. brought 24th AA 1971, it amended Art 368.
1] Instead of ‘procedure of amendment’, it added ‘power and procedure’. 
2] It made mandatory for president to give ascent to the amendment. President retains pocket veto, but loses ‘absolute veto’. 
3] It added clause (3) in Art 368 – Nothing in Art 13 shall apply to any amendment made under Art 368.  It added clause (4) in Art 13 – Nothing in this article shall apply to any amendment of this constitution under Art 368.

25th AA 1971. Added Art 31C – It can be seen as government’s attempt of harmonious construction between fundamental rights and directive principles.
Art. 31 C. If any law is made to give effect to the objectives of Art 39 (b) (c) – [Social and economic rights], such law will not be challenged on the ground that it contravenes Art 14,19 and 31.

5] Keshavanand Bharati vs State of Kerala 1973.

Validity of 24th and 25th amendment Act was challenged.
1] 24th AA 1971 – judiciary upheld the validity but it has put a rider (limitation. There is no limitation on the amending power of Parliament except that it cannot amend the ‘basic structure’ of constitution.
2] 25th AA 1971, Judiciary upheld the validity. Judiciary agreed that Golakhnath case has destroyed the harmony between FRs and DPSP.
Thus doctrine of BASIC STRUCTURE emerged from Keshavanand Bharati case of 1973.

Response of the govt.
42nd AA. 1976. It changes. Art 31C – Now immunity is given to all laws implementing any of the directive principles and not just 39(b) and 39(c).
Govt. also added clause (4) in Art 368 – 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 – For removal of doubts, there is no limitation whatsoever on the amending power of parliament.

Govt. destroyed the harmony, made fundamental rights subordinate to directive principles.  Supreme Court in Minerva Mills case 1980, restored the status as it was under 25th AA.

7] Minerva Mills case 1980

Judiciary declared all above-mentioned amendments [31C, 368(4), 368(5)] null and void.

8] IR Coelho vs State of Tamil Nadu 2005.

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 cases which are placed after the day of the judgement of Keshavanand Bharati case (24th April 1973) and not for legislations before that.

Criticism of Basic Structure doctrine.

It was criticized of being 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.
The doctrine came into existence by the vote of just one judge. Six judges on the bench were against and seven were in favor. Judiciary has not given the exhaustive list of what constitutes basic structure. It means judiciary enjoys discretionary powers.
However 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.

Was it desirable?

It was desirable because executive was bent on destroying the constitution. Thus Judicial activism was needed against the overreach by executive. What is the contribution of doctrine of basic structure? The survival of democracy in India. Had Judiciary not invented, India would have gone in the way of other third world countries. Hence it is a necessary evil.

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Bhavishya Desai

Typo: Marbury vs Madison case, 1707 should 1803

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