Judicial Review & Basic Structure Doctrine
Table of Contents
- Meaning of Judicial Review
- Constitutional Basis
- Types of Judicial Review
- Evolution of Judicial Review in India
- Limitations on Judicial Review
- Basic Structure Doctrine: Meaning
- Origin of Basic Structure
- Components of Basic Structure (List from SC Judgments)
- Key Supreme Court Cases
- Importance of Judicial Review & Basic Structure
- Criticism
- Summary
1. Meaning of Judicial Review
Judicial Review means the power of the judiciary (especially Supreme Court and High Courts) to:
- Examine the constitutionality of laws (Parliament/State Legislatures)
- Review executive actions
- Strike down unconstitutional laws or actions
It is the guardian of:
- Constitutional supremacy
- Fundamental Rights
- Rule of law
2. Constitutional Basis
Judicial review is not explicitly stated in one article but flows from several provisions:
A. Article 13
Any law violating Fundamental Rights is void.
B. Article 32
Supreme Court can enforce FRs (Writ jurisdiction).
C. Article 226
High Courts can enforce FRs and “for any other purpose”.
D. Article 131–136
Provide various appellate and original jurisdictions.
E. Article 245–246
Courts can check laws violating division of powers.
F. Article 372
Existing laws continue unless unconstitutional.
G. Articles 124, 136, 226, 227, 245, 246
Collectively ensure judicial review.
3. Types of Judicial Review
A. Judicial Review of Legislative Action
Reviewing laws passed by:
- Parliament
- State Legislatures
To check if they violate:
- Constitution
- Fundamental Rights
- Federal Structure
B. Judicial Review of Administrative/Executive Action
Examining administrative orders, decisions, policies for:
- Mala fide (bad faith)
- Excess of authority
- Procedural impropriety
- Irrationality
C. Judicial Review of Constitutional Amendments
Under Basic Structure Doctrine.
Courts can strike down amendments that violate basic structure.
4. Evolution of Judicial Review in India
1. Shankari Prasad v. Union of India (1951)
SC held Parliament could amend FRs–review limited.
2. Golaknath v. State of Punjab (1967)
FRs cannot be amended. First major check on Parliament.
3. Kesavananda Bharati v. State of Kerala (1973)
Birth of Basic Structure Doctrine.
Parliament can amend anything except basic structure.
4. Minerva Mills v. Union of India (1980)
Judicial Review declared part of Basic Structure.
5. I.R. Coelho v. State of Tamil Nadu (2007)
All laws, even in Ninth Schedule, are subject to judicial review if they violate basic structure.
5. Limitations on Judicial Review
Courts cannot review:
- Policies (unless arbitrary/unconstitutional)
- Foreign affairs decisions
- Emergency proclamation motives (but effects can be reviewed)
- Matters where Constitution gives complete parliamentary privilege
- Subjective satisfaction of President/Governor (with limited exceptions)
6. Basic Structure Doctrine: Meaning
Basic Structure Doctrine means:
Parliament can amend the Constitution under Article 368 but cannot alter or destroy its basic features.
It places substantive limits on the amending power of Parliament.
7. Origin of Basic Structure Doctrine
Originally borrowed from German constitutional law (“Basic Structure/Identity of Constitution”).
In India, SC created it in 1973 in Kesavananda Bharati case (13-judge bench, largest in history).
Judgment outcome:
- 7:6 majority
- Parliament’s power to amend not unlimited
- Constitution has an unchangeable core
8. Components of Basic Structure
No fixed list, but Supreme Court has included the following elements:
A. Supremacy of the Constitution
B. Republican and Democratic form of Government
C. Secularism
D. Separation of Powers
E. Federalism
F. Judicial Review
G. Rule of Law
H. Free & Fair Elections
I. Independence of Judiciary
J. Parliamentary System
K. Harmony between Fundamental Rights & DPSPs
L. Unity & Integrity of India
M. Power of SC under Art. 32
N. Limited power of Parliament to amend Constitution
9. Key Supreme Court Cases
1. Kesavananda Bharati v. State of Kerala (1973)
- Birth of Basic Structure Doctrine
- Parliament cannot destroy basic features
2. Indira Gandhi v. Raj Narain (1975)
- Free & Fair elections = Basic Structure
- 39th Amendment partially struck down
3. Minerva Mills v. Union of India (1980)
- Limited amending power is a basic feature
- Balance between FRs and DPSPs
4. Waman Rao v. Union of India (1981)
- Post-24 April 1973 laws in Ninth Schedule subject to review
5. I.R. Coelho v. State of Tamil Nadu (2007)
- Judicial review itself = Basic Structure
- All Ninth Schedule laws reviewable
6. S.R. Bommai v. Union of India (1994)
- Federalism & Secularism = Basic Structure
- President’s Rule subject to judicial review
7. Kihoto Hollohan v. Zachillhu (1992)
- Judicial Review of Speaker’s decisions in anti-defection matters
10. Importance of Judicial Review & Basic Structure
Judicial Review ensures:
- Constitutional supremacy
- Protection of FRs
- Accountability of Parliament & Executive
- Safeguarding federal structure
- Preventing authoritarianism
Basic Structure ensures:
- Parliament cannot convert democracy into dictatorship
- Constitution retains its identity
- Balance of powers is maintained
11. Criticism
Judicial Review Criticism
- Promotes judicial activism
- Possible clash with democratic will
- Unelected judges overturn elected legislature’s decisions
Basic Structure Criticism
- Not found in Constitution text
- Judiciary accused of usurping constituent power
- Vague and subjective
But SC maintains it is essential to protect the Constitution.
12. Summary
- Judicial Review is the power of courts to examine laws and actions for constitutionality.
- It is derived from Articles 13, 32, 226, 136, 145, etc.
- Review applies to legislative, executive, and constitutional actions.
- The Basic Structure Doctrine limits Parliament’s power under Article 368.
- Introduced in Kesavananda Bharati (1973).
- Includes federalism, secularism, rule of law, judicial review, independence of judiciary, and more.
- Essential to maintain the Constitution’s identity and prevent authoritarian amendments.