Judicial Review as a Basic Feature of the Constitution

In one line

Judicial review is not merely a power the Constitution gives; it is one of the things the Constitution cannot be amended to remove.

In the wording a student can write in an exam: 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 of the Constitution. It follows that it cannot be excluded or abridged by an ordinary law, and cannot be removed even by a constitutional amendment, because an amendment that damaged or destroyed a basic feature would itself be beyond the amending power under Article 368 as construed in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

The doctrine it rests on

Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, is the foundation.

Facts. The head of a religious mutt in Kerala challenged Kerala land reform legislation under Articles 25, 26, 14, 19(1)(f) and 31. The petition grew into a challenge to the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendments, passed to undo Golak Nath and to protect further reform laws. Thirteen judges heard it, the largest Bench the Court has ever sat.

Held. By a majority, Parliament's power to amend under Article 368 is wide but not unlimited: it does not extend to altering the basic structure or essential features of the Constitution. Golak Nath was overruled so far as it had denied the power to amend Part III at all, so amendments to fundamental rights are possible, but no amendment may damage or destroy the basic structure. The judges gave illustrative and expressly non-exhaustive lists of what that structure includes.

Why it matters here. Everything in this chapter is a consequence of it. Without a limit on the amending power, no feature could be beyond amendment and the question would not arise.

The steps by which review became a basic feature

Step one: the amending power is limited. Kesavananda, 1973.

Step two: an attempt to exclude review from amendments fails. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

Facts. A sick textile undertaking was taken over and nationalised, and the Act was placed in the Ninth Schedule. The petitioners challenged sections 4 and 55 of the Constitution (Forty-second Amendment) Act 1976. Section 55 inserted clauses (4) and (5) into Article 368, declaring that no amendment could be called in question in any court and that there was no limitation on the constituent power. Section 4 widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19.

Held. Both were void and beyond the amending power. Clause (5) sought to remove all limitations on the amending power and demolished the very pillars on which limited government rests. Clause (4) sought to deprive the courts of the power to decide whether a limitation had been exceeded, and a limited power cannot be made unlimited by removing the means of enforcing the limit. The widened Article 31C destroyed the balance between fundamental rights and directive principles, which is itself a basic feature.