Judicial Review as a Basic Feature of the Constitution

Why it matters here. The reasoning on clause (4) is the argument in one sentence: a limit without a means of enforcement is not a limit.

Step three: review is expressly held to be a basic feature. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

Facts. A batch of matters questioned whether Articles 323A(2)(d) and 323B(3)(d), which allowed exclusion of the jurisdiction of all courts except the Supreme Court under Article 136 in tribunal matters, could stand against judicial review under Articles 226 and 227 and Article 32; whether tribunals could test the constitutional validity of statutes; and whether they were effective substitutes for the High Courts.

Held. A seven judge Bench held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded. The exclusion clauses were struck down to that extent. Tribunals may test the vires of subordinate legislation and statutes, but their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall, and they function as courts of first instance rather than as substitutes for the High Court.

Why it matters here. It is the express holding MU's questions are asking about, and it corrected the decision that had upheld the very exclusion it struck down.

That decision is S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.

Facts. The Administrative Tribunals Act 1985, made under Article 323A, excluded the jurisdiction of the High Courts under Articles 226 and 227 in service matters and vested it in tribunals. The exclusion was challenged as destroying judicial review.

Held. The Act was upheld, on the footing that judicial review may be entrusted to an alternative institutional mechanism provided that mechanism is no less effective than the High Court. The Court required changes to the qualifications and mode of appointment of the Chairman, Vice-Chairman and Members so that the tribunal would be a real and effective substitute.

Why it matters here. The pair shows the Court changing its own mind about how far judicial review may be relocated. In 1986 an equally effective substitute was thought sufficient; by 1997 the High Court's own jurisdiction was held to be part of the basic structure, so no substitute could displace it. The doctrine was tightened against a decade of tribunal practice rather than abandoned.

Step four: the Ninth Schedule is brought within review. I.R. Coelho v. State of Tamil Nadu, decided on 11 January 2007, held that laws placed in the Schedule after 24 April 1973 remain open to challenge for damaging the basic structure, the test being the effect of the law on the fundamental rights, and that judicial review being a basic feature, blanket immunity cannot be conferred.

Step five: applied to strike down an amendment about the judiciary itself. The NJAC decision of 16 October 2015 declared the Ninety-ninth Amendment and the NJAC Act unconstitutional and void, and restored the collegium.

Critical evaluation, which MU asks for expressly

The 2016 question says "critically evaluate", so an answer that only states the doctrine is incomplete.

In favour.

• Without it, a limited amending power could be made unlimited simply by removing the court's jurisdiction, which is Minerva Mills' point.
• A right without a remedy is not a right, and Article 32 is itself a fundamental right.
• Indian experience supports it. The Thirty-ninth and Forty-second Amendments were attempts to place particular exercises of power beyond challenge, and both were made in a period whose character is now generally acknowledged.

Against.

• The doctrine is judicially created. The basic structure is nowhere in the text, and the Constituent Assembly did not adopt any limitation on Article 368. The Court has given itself the power to decide which features are unamendable.
• Its content is uncertain. The lists in Kesavananda were expressly illustrative, and what is basic has been settled case by case ever since, which is not how a limit on a legislature is usually defined.
• It is counter-majoritarian at the highest level. An amendment requires special majorities in both Houses and, for some provisions, ratification by half the States. To strike one down is to override the most deliberate form of decision the political system has.
• It creates a conflict of interest when the judiciary is the subject. The NJAC decision struck down an amendment about the appointment of judges, on the ground that judicial primacy in appointments is part of the independence of the judiciary and so of the basic structure. Chelameswar J. dissented. Whether or not the majority was right, the Court was deciding the extent of its own power.

The balance. The best answer says that the doctrine has no textual foundation and that Indian constitutional history supplies the practical case for it, and then notes that the strongest criticism is about who decides what is basic rather than about whether anything should be.

A worked example

Parliament amends the Constitution to provide that no court shall question any law relating to national security, and that all such matters shall be decided finally by a tribunal appointed by the executive.

Is it within Article 368? Formally yes: the procedure can be complied with.

Is it valid? No, on three grounds. It excludes the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, which Chandra Kumar holds to be basic. It makes a limited power unlimited by removing the means of enforcing the limit, which Minerva Mills forbids. And a tribunal appointed by the executive to decide the legality of executive action offends the rule against being judge in one's own cause.

What survives? The creation of a specialised tribunal at first instance is unobjectionable; the ouster of the High Court's supervisory jurisdiction is not.

Quick revision

1. Judicial review under Articles 226, 227 and 32 is part of the basic structure and cannot be excluded by law or by amendment.
2. Kesavananda, 1973: the amending power is wide but does not extend to damaging the basic structure.
3. Minerva Mills, 1980: a limited power cannot be made unlimited by removing the means of enforcing the limit.
4. Chandra Kumar, 1997: express holding, correcting Sampath Kumar.
5. Coelho, 2007: no blanket immunity through the Ninth Schedule.
6. NJAC, 2015: an amendment about the judiciary itself struck down; Chelameswar J. dissenting.
7. Criticism: judicially created, uncertain in content, counter-majoritarian, and a conflict of interest where the judiciary is the subject.

Test yourself

1. Trace in four steps how judicial review came to be a basic feature. Kesavananda held the amending power limited by the basic structure; Minerva Mills struck down the attempt to make amendments unreviewable, holding that a limited power cannot be made unlimited by removing the means of enforcing the limit; Chandra Kumar held expressly that review under Articles 226, 227 and 32 is part of the basic structure and cannot be excluded; and Coelho held that placing a law in the Ninth Schedule after 24 April 1973 confers no blanket immunity.

2. State Minerva Mills' argument on clause (4) of Article 368. That a limited power cannot be made unlimited by taking away the means of enforcing the limit. Clause (5) purported to remove all limitations on the amending power, and clause (4) purported to remove the courts' power to decide whether a limitation had been exceeded; the second is as destructive as the first, because a limit that no one may enforce is not a limit.

3. Give the two strongest criticisms of treating judicial review as a basic feature. That the basic structure doctrine is judicially created, appears nowhere in the text and was not adopted by the Constituent Assembly, so the Court has assumed the power to decide which features are unamendable; and that its content is uncertain, the Kesavananda lists being expressly illustrative and what is basic being settled case by case, which is an unusual way to define a limit on a legislature.

4. Why is the NJAC decision uncomfortable even for those who accept the doctrine? Because the Court was determining the extent of its own power. It struck down an amendment concerning the appointment of judges on the ground that judicial primacy in appointments forms part of the independence of the judiciary and so of the basic structure, and it restored an arrangement of its own earlier making. Chelameswar J. dissented, and the conflict of interest is a criticism independent of whether the majority was right.