Judicial review and the contest with Parliament

Detail

1. What judicial review is

• Judicial review is the power of the Supreme Court and the High Courts to check whether a law or a government action follows the Constitution. If it does not, the court can declare it void (of no legal force).
• It applies to Union laws and state laws, and also to executive actions.
• The words "judicial review" do not appear in the Constitution. The power comes from:
• A written Constitution. It is the highest law, so someone must decide when a law breaks it.
• Art. 13: the State cannot make a law that takes away or cuts down fundamental rights. Any such law is void to the extent it conflicts.
• Art. 32 (Supreme Court) and Art. 226 (High Courts): the power to issue writs to protect rights.
• Arts. 131-136: the Supreme Court's original jurisdiction (cases that start in the Supreme Court, such as Centre-state disputes under Art. 131), its appellate jurisdiction (appeals from lower courts), and special leave to appeal (Art. 136).

• Arts. 245-246, 251 and 254: how law-making power is split between the Union and the states, and which law wins when the two conflict (repugnancy).

• Origin: the USA, Marbury v. Madison (1803).

• This differs from British parliamentary sovereignty. In Britain no court can strike down an Act of Parliament.

• India sits between the two. Parliament makes laws and can amend the Constitution, but the courts can test both.

• Judicial review is part of the basic structure. The basic structure is the set of core features that even a constitutional amendment cannot destroy.

2. Grounds for striking down a law

Ground	What it means	Example
Violation of fundamental rights	A law breaks a right in Part III, so Art. 13 makes it void	A law restricting speech beyond the limits allowed by Art. 19(2)
Breach of the federal division of powers	A legislature makes a law on a subject outside its list in the Seventh Schedule (Art. 246)	A Union law on a State List subject, challenged by a state
Breach of the basic structure (amendments only)	An amendment under Art. 368 destroys a core feature	Kesavananda (1973) and Minerva Mills (1980)

3. Judicial review vs writ

	Judicial review	Writ
What it does	Cancels (voids) a law or action	Orders an authority to do something or to stop doing it
Target	The law itself	A person, official or body
Example	Declaring a section of an Act unconstitutional	Mandamus (an order to a public official to do a legal duty); habeas corpus (an order to produce a detained person before the court)

• NCERT's activity in Class 7 asks: who is more powerful, Parliament or the Supreme Court?
• The answer is a balance. Parliament makes laws and can amend the Constitution.
• The Court can strike down laws and amendments that break the Constitution.
• Each one checks the other (Class 8: the courts check both the laws and how they are carried out).

4. Due process: from Gopalan to Maneka

• Art. 21: no person shall lose life or personal liberty "except according to procedure established by law".
• Due process is the idea that a law taking away liberty must itself be fair, and not only properly passed.

Case	Holding
A.K. Gopalan (1950)	Read Art. 21 narrowly. If a valid law laid down a procedure, the court would not ask whether that procedure was fair. Each fundamental right was treated as a separate compartment.
Maneka Gandhi (1978)	The procedure must be "just, fair and reasonable". Arts. 14, 19 and 21 are linked, so a law touching liberty must pass all three tests. In practice this brought in due process.

5. Executive powers brought under review

• Pardons (Art. 72 for the President, Art. 161 for the Governor):
• Kehar Singh (1989): a decision to pardon can be reviewed by the courts.

• Epuru Sudhakar (2006): a pardon can be struck down if it was given on irrelevant grounds, on political grounds, or without applying the mind.

• Art. 356 (President's rule): S.R. Bommai (1994) allowed courts to examine a proclamation. A government's majority must be tested on the floor of the House.

• Ordinances (Arts. 123 and 213): Krishna Kumar Singh (2017) held that ordinances can be reviewed and that re-issuing them again and again is a fraud on the Constitution.
• The Governor's discretion: Nabam Rebia (2016) held that the Governor's discretion is narrow and can be reviewed. It is not a free hand.

6. Limits on judicial review

• Ninth Schedule (Art. 31B):
• Added by the 1st Amendment (1951). Laws placed in this Schedule were protected from challenge on fundamental-rights grounds.

• I.R. Coelho (2007): laws added to the Ninth Schedule after 24 April 1973 (the date of Kesavananda) can be tested against the basic structure, including the rights in Arts. 14, 19 and 21.

• Art. 74(2): courts cannot ask what advice the ministers gave the President.

• Arts. 122 and 212: the proceedings of Parliament or a state legislature cannot be questioned in court on the ground of irregular procedure.
• Art. 262(2): Parliament may bar courts from hearing inter-state river water disputes.
• Art. 329(a): laws on delimitation (drawing constituency boundaries) cannot be questioned in court.
• Doctrines of self-restraint (ways courts avoid striking down laws without need):
• Presumption of constitutionality: a law is assumed valid. The person challenging it must prove that it is not.
• Severability: only the bad part of a law is removed. The rest survives.
• Reading down: wide words in a law are given a narrower meaning so the law stays within the Constitution.

7. The Parliament-judiciary contest

NCERT's four issues in the conflict:

1. How far does the right to property go?
2. Can Parliament cut down fundamental rights?
3. How far does Parliament's amending power go?
4. Can Parliament pass laws that cut down fundamental rights in order to carry out the Directive Principles?

Phase 1 — Land reform and the first clashes (1950-1967)

• Land reform stalled:
• States passed zamindari abolition and land-ceiling laws.
• Courts struck some of them down under the right to property.

• Parliament passed the 1st Amendment (1951). It created Art. 31B and the Ninth Schedule.

• Shankari Prasad (1951): upheld the 1st Amendment. A constitutional amendment is not "law" under Art. 13, so Parliament can amend fundamental rights.

• Sajjan Singh (1965): took the same view and upheld the 17th Amendment.
• Golaknath (1967): reversed this. An amendment is "law" under Art. 13, so Parliament cannot cut down fundamental rights.

Phase 2 — Parliament hits back (1971)

• 24th Amendment (1971): said that Art. 13 does not apply to amendments made under Art. 368. It also made it compulsory for the President to give assent to a constitutional amendment bill.
• 25th Amendment (1971): brought in Art. 31C to protect laws that carry out Art. 39(b) and (c) (sharing out material resources fairly and preventing wealth from piling up in a few hands) from challenge under fundamental rights [3].

Phase 3 — Kesavananda Bharati (24 April 1973)

• It was decided by a 13-judge bench [3].
• What it held:
• Parliament can amend any part of the Constitution, fundamental rights included. Golaknath was overruled on this point.
• But Parliament cannot destroy the basic structure.
• The right to property is not part of the basic structure.

• The Court decides what is basic.

• The first part of Art. 31C survived. The second part, which blocked courts from asking whether a law really served the Directive Principles, was struck down because judicial review is part of the basic structure [3].

• NCERT's conclusion: Kesavananda changed the nature of the conflict. The fight was no longer about property. It became a fight over who has the final word on the Constitution.

Phase 4 — The Emergency (1975-77)

• Indira Gandhi v. Raj Narain (1975): the Court struck down an amendment that tried to place the Prime Minister's election beyond any court. Free and fair elections are part of the basic structure.
• ADM Jabalpur (1976): held that during an Emergency no person could go to court to enforce Art. 21, so habeas corpus was not available. It was overruled in Puttaswamy (2017).
• 42nd Amendment (1976):
• Widened Art. 31C to cover all Directive Principles [3].
• Added Art. 368(4) and (5) to stop courts from reviewing amendments.

Phase 5 — Restoring balance (1978-1980)

• 44th Amendment (1978, in force 1979):
• Removed property from the fundamental rights. Art. 19(1)(f) and Art. 31 were deleted.

• It is now only a legal right under Art. 300A.

• Minerva Mills (1980):

• Struck down Art. 368(4) and (5) [3].
• Struck down the 42nd Amendment's widening of Art. 31C. The Court said it destroyed the harmony between Part III (rights) and Part IV (Directive Principles), which is itself part of the basic structure [3].

• Limited amending power is itself a basic feature.

• Waman Rao (1980, five judges): held that Art. 31C in its form before 1976 stays valid [3].

• Whether the original Art. 31C comes back to life after a later amendment to it is struck down was referred to a nine-judge bench (Property Owners Association, 2024) [3].

8. Open frontiers (unresolved areas)

(a) Legislative privileges vs courts

• Legislative privilege means the special immunities of legislators and Houses, such as freedom of speech in the House under Arts. 105 and 194.
• Keshav Singh (1965): an open clash between the Uttar Pradesh Assembly and the Allahabad High Court. The Supreme Court held that courts can examine claims of privilege.
• Raja Ram Pal (2007): upheld the expulsion of MPs in the cash-for-query case. Such expulsions can still be reviewed by the courts.
• Sita Soren (4 March 2024, seven judges):
• Overruled P.V. Narasimha Rao (1998).
• A legislator who takes a bribe to vote or speak a certain way gets no immunity under Art. 105 or 194 [2].
• The bribery offence is complete when the bribe is accepted. It does not matter whether the vote is later cast as promised, or cast at all [2].
• Facts: a Jharkhand MLA was accused of taking a bribe to vote in the Rajya Sabha election of 30 March 2012 [2].

(b) Anti-defection (Tenth Schedule)

• The Tenth Schedule disqualifies a legislator who defects (leaves the party or defies its whip). The Speaker decides these cases.
• Kihoto Hollohan (1992): the Speaker acts as a tribunal (a body that decides disputes like a court), so the Speaker's decisions can be reviewed by courts.
• Keisham Meghachandra Singh (21 January 2020): the Speaker must decide disqualification petitions within a reasonable time. Three months from the date of filing is the outer limit, unless there are exceptional circumstances [4].
• Subhash Desai v. Governor of Maharashtra (11 May 2023, Constitution bench): dealt with the Shiv Sena split. Questions included whether a Speaker facing a removal notice can still decide disqualification cases, and the Governor's role in calling a floor test [5].

(c) Courts giving orders to legislatures

• A floor test is a vote in the House to prove that the government has a majority.
• Courts have ordered floor tests in Jharkhand (2005), Karnataka (2018) and Maharashtra (2019).
• Critics say this goes against Art. 212. Supporters say it protects majority rule.

(d) Mutual criticism

• Art. 121: Parliament cannot discuss the conduct of a Supreme Court or High Court judge, except during a motion to remove that judge. (Art. 211 applies the same rule to state legislatures.)
• Even so, the two sides criticise each other in public.
• NCERT's list of conflict issues: appointment of judges, judges' salaries, the amending power, and interference in each other's work.

Prelims Hooks

• "Judicial review" is not named in the Constitution. It rests on Arts. 13, 32, 226, 131-136 and 245-254. Its origin is Marbury v. Madison (USA, 1803).
• Shankari Prasad (1951) and Sajjan Singh (1965): Parliament can amend fundamental rights. Golaknath (1967): it cannot. Kesavananda (1973): it can, but not the basic structure.
• 24th Amendment (1971): Art. 13 does not apply to Art. 368 amendments, and presidential assent is compulsory. 25th Amendment (1971): Art. 31C [3].
• Minerva Mills (1980) struck down Art. 368(4) and (5), and the 42nd Amendment's widening of Art. 31C [3].
• I.R. Coelho (2007): Ninth Schedule laws added after 24 April 1973 can be reviewed.
• Sita Soren (2024, seven judges) overruled P.V. Narasimha Rao (1998). There is no immunity under Arts. 105 or 194 for taking bribes to vote or speak [2].
• Kihoto Hollohan (1992): the Speaker's decisions under the Tenth Schedule can be reviewed. Keisham Meghachandra (2020): decide within three months [4].
• ADM Jabalpur (1976) was overruled by Puttaswamy (2017).
• Trap: property is not part of the basic structure. It is now a legal right under Art. 300A (44th Amendment, 1978).
• Pairs to match:
• Art. 122 / Art. 212 → procedure of the legislature cannot be questioned in court.
• Art. 74(2) → the advice ministers gave the President cannot be questioned.
• Art. 262(2) → courts can be barred from water disputes.
• Art. 329(a) → delimitation laws cannot be questioned.

Mains Points

• Who has the last word?
• Kesavananda turned a dispute about property into a balance of power. Parliament can amend the Constitution, and the Court guards its core.
• Critics: unelected judges can veto the elected Parliament, and "basic structure" is not clearly defined.

• Supporters: the 39th and 42nd Amendments of the Emergency years show why some limit on Parliament is needed.

• Rights vs Directive Principles:

• The story of Art. 31C runs from the 25th Amendment (1971) to the 42nd Amendment (1976) to Minerva Mills (1980) [3].
• It shows the Court treating Parts III and IV as complementary, and not letting either part override the other.

• This is useful for GS-II questions on the "social revolution" goal of the Constitution.

• Accountability inside the legislature:

• Sita Soren (2024) [2] and the three-month limit in Keisham (2020) [4] show courts filling gaps where self-regulation by Houses and Speakers has failed.

• Reform ideas include handing anti-defection cases to an independent tribunal or the President and Governor acting on Election Commission advice (as Art. 103 and Art. 192 already do for other disqualifications).

• Restraint vs activism:

• Restraint tools: presumption of constitutionality, severability, reading down. Limits: Arts. 74(2), 122, 212 and 329(a).
• These tools and limits sit alongside court-ordered floor tests and review of pardons, Art. 356 and Governors.
• A good answer argues for review that is principled and predictable, not for less review.