Judicial Review and the Basic Structure
Chapter Twenty-Two
Syllabus topic 2, "Judicial Review in India"
Pages 66 to 69 of 430
In one line
Parliament may amend the Constitution but may not destroy its basic structure, and judicial review is one of the things the basic structure is made of.
In the wording a student can write in an exam: the basic structure doctrine holds that the amending power in Article 368 does not extend to altering the basic structure or framework of the Constitution; judicial review has been held to be part of that basic structure, so the power to review cannot be removed either by ordinary legislation or by constitutional amendment.
MU's question
The University asks for the journey of the doctrine of judicial review from its origin to the principle of basic structure. The origin is [The Historical Development of Judicial Review]; the journey is this chapter, and it has six stages.
Stage one: the doctrine is born
Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461.
Facts. The head of a religious mutt challenged Kerala land reform legislation and, in the course of it, the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments, which had been passed to overcome earlier decisions restricting Parliament's power to amend the fundamental rights. Thirteen judges heard the case.
Held. Parliament has a wide power to amend the Constitution under Article 368, and that power extends to the fundamental rights, but it cannot be used to alter the basic structure or framework of the Constitution. Golak Nath was overruled to the extent that it denied the power to amend fundamental rights. No exhaustive list of basic features was given; supremacy of the Constitution, the republican and democratic form of government, its secular character, the separation of powers and its federal character were among those named.
Why it matters here. It creates the limit. Everything that follows is an application of it to a device that tried to remove a court.
Stage two: the doctrine strikes an amendment down
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
Facts. After the Allahabad High Court set aside the Prime Minister's election, the Thirty-ninth Amendment inserted Article 329A, clause (4) of which declared that the election of a person holding the office of Prime Minister or Speaker should not be deemed void and that no court should have jurisdiction over it, notwithstanding any judgment already given.
Held. Clause (4) was struck down as destroying the basic structure. It decided the dispute itself instead of leaving it to be decided by a court applying the law, and it decided it with no law being applied at all, which is an exercise of judicial power by the constituent body and offends the separation of powers, the rule of law and free and fair elections.
Why it matters here. It is the first application of the doctrine and it is an application to an ouster of judicial review, which is exactly MU's topic.
Judicial Review and the Basic Structure
Stage three: the doctrine protects itself
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
Facts. The Forty-second Amendment inserted clauses (4) and (5) into Article 368, providing that no amendment shall be called in question in any court on any ground and that there shall be no limitation whatever on the constituent power of Parliament, and it extended Article 31C so that every directive principle took primacy over Articles 14 and 19.
Held. Both clauses were struck down. Clause (5) transgresses the limitations on the amending power: no constituent power can go higher than a power to amend without any limitation whatever, which would even permit the repeal of the Constitution and the abrogation of democracy. Clause (4) is equally bad, because it removes the very review by which the limit is enforced; a limited amending power is itself a basic feature and judicial review is what keeps it limited. The extension of Article 31C was also struck down, the harmony and balance between fundamental rights and directive principles being a basic feature.
Why it matters here. It is the clearest statement that judicial review is not merely a power of the courts but the mechanism that makes every other limit real.
Stage four: review survives an ouster in the Tenth Schedule
Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686.
Facts. The Tenth Schedule, inserted by the Fifty-second Amendment, disqualifies a member for defection and by paragraph 6 makes the Speaker's decision final. Paragraph 7 provided that no court shall have any jurisdiction in respect of any matter connected with such disqualification.
Held. Paragraph 7 was struck down. It took away the jurisdiction of the High Courts under Article 226 and of the Supreme Court under Article 32 in a matter, and so changed Articles 136, 226 and 227, which required ratification by the States under the proviso to Article 368(2) and had not been obtained. Paragraph 7, in so far as it takes away the power of judicial review, which is itself a basic feature, is liable to be struck down. The rest of the Schedule survived on severability. The Speaker acting under paragraph 6 acts as a tribunal, so the decision is reviewable, though only for jurisdictional errors, violations of a constitutional mandate, mala fides, non-compliance with natural justice and perversity, and only after the decision is made.
Why it matters here. Two lessons at once: an ouster inserted by constitutional amendment can fail, and a decision made final by the Constitution is still reviewable, though narrowly.
Judicial Review and the Basic Structure
Stage five: review is placed beyond the reach of tribunalisation
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, held that the power of 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 ousted, so clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28 of the Administrative Tribunals Act 1985 are unconstitutional to that extent. It is worked in [Tribunals, Article 323A and L. Chandra Kumar].
Stage six: the Ninth Schedule is opened
I.R. Coelho v. State of Tamil Nadu, decided on 11 January 2007.
Facts. A number of statutes had been placed in the Ninth Schedule after 24 April 1973, the date of Kesavananda, so as to attract Article 31B, which says that no law in the Ninth Schedule shall be void on the ground that it is inconsistent with a fundamental right. The question before a nine-judge bench was whether such laws are immune altogether.
Held. A law placed in the Ninth Schedule after 24 April 1973 is open to challenge on the ground that it damages or destroys the basic structure, and the test is the effect of the law on the rights in Part III, applying the rights test and the essence of the rights test. Article 31B gives protection but not immunity from basic structure review.
Why it matters here. It closes the last device by which review could be excluded wholesale.
A worked example
Parliament amends the Constitution to provide that no court shall question any order made under a new central Act regulating digital platforms, and that all disputes shall be decided by a commission whose decision shall be final.
The exclusion of the High Courts fails under L. Chandra Kumar, because review under Articles 226 and 227 is basic structure. Even a well-drafted amendment fails under Kihoto Hollohan if it alters Articles 136, 226 and 227 without ratification. And an attempt to insulate the Act by putting it in the Ninth Schedule fails under I.R. Coelho, because it was inserted after 24 April 1973.
What this does NOT mean
It does not mean amendments cannot touch judicial review at all. The forum can be changed, as tribunals show; what cannot be removed is the review itself.
It does not mean every basic feature is settled. The list is open, and courts have added to it case by case.
It does not mean an ordinary statute is tested against the basic structure. An ordinary law is tested against the Constitution's provisions; the basic structure test is for amendments, subject to what Coelho decided about Ninth Schedule laws.
Judicial Review and the Basic Structure
Quick revision
Kesavananda 1973: the amending power cannot alter the basic structure. Indira Nehru Gandhi 1975: Article 329A(4) struck down, because it decided a dispute without law and ousted the court. Minerva Mills 1980: Article 368(4) and (5) struck down, because a limited amending power is a basic feature and review is what keeps it limited. Kihoto 1992: paragraph 7 of the Tenth Schedule struck down for want of ratification and for taking away review. L. Chandra Kumar 1997: review by the High Courts and the Supreme Court is basic structure. I.R. Coelho 2007: Ninth Schedule laws after 24 April 1973 are open to basic structure review.
Test yourself
1. Why did clause (4) of Article 368 fail in Minerva Mills? Because it removed the judicial review by which the limits on the amending power are enforced, and a limited amending power is itself a basic feature.
2. On what ground did paragraph 7 of the Tenth Schedule fail? It changed Articles 136, 226 and 227 without the ratification the proviso to Article 368(2) requires, and it took away the power of judicial review which is a basic feature.
3. What is the significance of 24 April 1973 in I.R. Coelho? It is the date of Kesavananda; laws placed in the Ninth Schedule after it are open to challenge for damaging the basic structure.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.