Questions Asked

•  The Doctrine of Basic Structure of the Constitution has enhanced the power of judicial review of the Supreme Court. Examine.    (22/15) 

•  “The basic structure doctrine is implicit in the Indian Constitution; the Supreme Court has only given it an explicit form.” Comment. (19/20)

•  Discuss the efficacy of judicial review in India (15/10)

•  Comment in 150 words: 99th Amendment of the Indian Constitution (15/10)

•  Comment on Doctrine of Basic Structure of the Indian Constitution. (150 words) (12/12)

•  Comment: Kesavananda Bharathi Case, (96/20)

Judicial Review

Introduction

Judicial Review: Judicial review is a legal process where a court examines the constitutionality of a government action, decision, or law to ensure that it complies with the constitution.

Key Elements

•  Constitutional Adjudication: Courts assess the legality of governmental actions in light of the constitution.

•  Checks and Balances: It serves as a mechanism to check and balance the powers of different branches of government.

Historical Context

United States

•  Marbury v. Madison: Established the principle of judicial review in the U.S. in 1803, when Chief Justice John Marshall declared an act of Congress unconstitutional.

India

•  Kesavananda Bharati Case: In 1973, the Indian Supreme Court established the basic structure doctrine, ensuring that certain fundamental principles of the Indian Constitution cannot be amended.

Other Countries

•  Varied Origins: Many countries have adopted the concept of judicial review through their respective constitutional histories and legal systems.

•  Civil Law vs. Common Law Systems: The nature and extent of judicial review can differ between countries with civil law and common law traditions.

Role of judicial review

Protecting Rights

•  Individual Rights: Ensures that individual rights and liberties are safeguarded against government overreach.

Constitutional Interpretation

•  Guardian of the Constitution: Courts interpret and apply constitutional principles, upholding the rule of law by ensuring that governmental actions conform to the constitution.

Efficacy of judicial review in India

•  Discuss the efficacy of judicial review in India. (15/10)

Introduction

•  Judicial review, a crucial component of India's constitutional framework, involves the judiciary's authority to examine and invalidate government actions that violate constitutional principles. 

Constitutional Foundation

•  Article 13:

•  The cornerstone for judicial review in India.

•  Empowers the judiciary to strike down laws inconsistent with the Constitution.

Guardian of the Constitution

•  Supreme Court and High Courts:

•  Entrusted with the responsibility of safeguarding the Constitution.

•  Acts as a check on the legislative and executive branches.

Expansive Scope of Review

•  Laws and Executive Actions:

•  Extends beyond legislation to cover executive actions.

•  Enables the judiciary to ensure conformity with constitutional principles.

•  Fundamental Rights Protection:

•  Judicial review serves as a robust mechanism for protecting Fundamental Rights.

•  Courts can strike down laws infringing on citizens' rights.

Public Interest Litigation (PIL)

•  Accessibility and Inclusivity:

•  PILs enable citizens to seek judicial intervention in matters of public importance.

•  Enhances access to justice and ensures accountability.

Check on Legislative Excesses

•  Arbitrariness and Unconstitutionality:

•  Judiciary scrutinizes laws to prevent arbitrary exercises of power.

•  Invalidates laws inconsistent with constitutional provisions.

Emergency and Judicial Review

•  Emergency Provisions:

•  The judiciary's role in upholding constitutional values during emergencies.

•  The seminal Kesavananda Bharati case reaffirmed the limits on constitutional amendments.

Landmark Cases Demonstrating Efficacy

•  Keshavananda Bharati v. State of Kerala (1973):

•  Introduction of the basic structure doctrine.

•  Judicial review as a tool to protect the Constitution's core values.

•   Minerva Mills v. Union of India (1980):

•   Asserted the judiciary's power to review constitutional amendments.

•   Reinforced the doctrine of basic structure.

Challenges and Criticisms

•  Delay in Adjudication:

•  Criticisms regarding delays in judicial proceedings.

•  Impact on timely justice delivery.

•  Overreach Concerns:

•  Debate on whether the judiciary should refrain from intervening in policy matters.

•  Balancing judicial activism with institutional limits.

International Comparisons

•  Robust Tradition:

•  India's tradition of judicial review is comparable to other democratic nations.

•  Acknowledged internationally for upholding constitutional principles.

Conclusion

•  The efficacy of judicial review in India is evident through the judiciary's proactive role in upholding constitutional values. From protecting Fundamental Rights to limiting legislative excesses, the judiciary has played a vital role in ensuring the constitutional balance. While challenges exist, the overall impact of judicial review remains a cornerstone of India's democratic governance. The judiciary's commitment to constitutional principles and the evolving jurisprudence around judicial review contribute to its continued effectiveness in safeguarding the Constitution.

Judicial Review and Democratic Governance

Separation of Powers

•  Checks and Balances: Judicial review balances legislative and executive powers, preventing them from overstepping their constitutional boundaries.

Respect for Law

•  Legislative Independence: Courts respect legislative authority while ensuring that laws and actions conform to the constitution.

99th Amendment of the Indian Constitution

•  Comment in 150 words: 99th Amendment of the Indian Constitution (15/10)

Introduction

•  The 99th Amendment of the Indian Constitution is a legislative change that aimed to address specific issues related to the National Commission for Backward Classes (NCBC). 

Background

•  Need for Amendment:

•  The amendment was introduced to grant constitutional status to the NCBC.

Key Provisions

•  Article 338B:

•  Insertion of Article 338B to provide for the NCBC's constitutional status.

•  Specifies the composition and functions of the NCBC.

•  Article 342A:

•  Insertion of Article 342A to empower the President to notify socially and educationally backward classes.

Constitutional Status for NCBC

•  Enhanced Powers:

•  The amendment elevated the NCBC to a constitutional body, enhancing its powers and independence.

•  Recommendatory Role:

•  While the NCBC's recommendations are not binding on the government, the constitutional status strengthens its authority.

Presidential Notification

•  Identification of Backward Classes:

•  The President's authority to notify socially and educationally backward classes adds a formal process to the identification of such classes.

•  Avoiding Ambiguity:

•  A constitutional provision ensures clarity and avoids ambiguities in recognizing backward classes.

Implications

•  Empowerment of NCBC:

•  The amendment empowers the NCBC to effectively address the concerns of backward classes.

•  Constitutional Recognition:

•  Provides constitutional recognition to the process of identifying and addressing the needs of backward classes.

Challenges and Controversies

•  Reservation Policies:

•  The amendment doesn't alter the existing reservation policies but may impact future discussions on the extension of reservations.

•  Criticism:

•  Some critics argue that granting constitutional status may not necessarily address the substantive issues faced by backward classes.

Relation to Other Amendments

•  Continuity with 101st Amendment:

•  The 99th Amendment is related to the 101st Amendment, which introduced the Goods and Services Tax (GST).

•  Diverse Legislative Changes:

•  Demonstrates the diverse nature of constitutional amendments addressing various aspects of governance.

Conclusion

The 99th Amendment of the Indian Constitution, by conferring constitutional status to the NCBC, represents a step toward formalizing and empowering institutions addressing the concerns of backward classes. While it establishes a clear framework for the NCBC's role and the process of recognizing backward classes, ongoing discussions and challenges highlight the complexity of addressing social and economic disparities through constitutional amendments. The long-term impact and effectiveness of the amendment will depend on its implementation and its ability to contribute meaningfully to the welfare of backward classes in India.

Judicial Review in Various Jurisdictions

Comparative Analysis of Judicial Review in Different Countries

United States

•  Strong Tradition: The U.S. has a strong tradition of judicial review, with the Supreme Court often interpreting and striking down laws and executive actions.

•  Precedents: Stare decisis principles mean that decisions set precedents for future cases.

India

•  Expansive Role: The Indian Supreme Court has played an expansive role in interpreting the constitution, often exercising judicial review to protect fundamental rights.

•  Basic Structure Doctrine: The doctrine provides a framework for evaluating constitutional amendments.

Other Democracies

•  Varied Practices: The extent and manner of judicial review can vary significantly across democracies.

•  Constitutional Texts: Differences in constitutional texts and historical contexts influence how judicial review is practiced.

Key Differences and Similarities in the Practice of Judicial Review

Differences

•  Extent of Review: Some countries allow for more extensive review of governmental actions than others.

•  Scope of Judicial Authority: Differences exist in the scope of issues that can be subjected to judicial review.

Similarities

•  Constitutional Adjudication: All countries with judicial review engage in constitutional adjudication.

•  Rule of Law: The common goal is to uphold the rule of law by ensuring government actions comply with the constitution.

Challenges

•  Undemocratic: Some argue that unelected judges should not have the power to invalidate the actions of elected officials.

•  Judicial Activism: Critics suggest that judges may overstep their bounds and engage in judicial activism.

•  Implementation Issues: Judicial review can face challenges in terms of the implementation and enforcement of court decisions.

•  Legitimacy: Maintaining the legitimacy of the judiciary in the eyes of the public is an ongoing challenge.

Basic Structure Doctrine 

•  Comment on Doctrine of Basic Structure of the Indian Constitution. (150 words) (12/12)

Introduction

•  The Doctrine of Basic Structure is a constitutional principle that plays a pivotal role in defining the limits of amending powers granted to Parliament under Article 368 of the Indian Constitution. 

Genesis of the Doctrine

•  Kesavananda Bharati Case (1973):

•  The doctrine emerged as a result of the landmark judgment in the Kesavananda Bharati v. State of Kerala case.

Core Tenets

•  Essential Features:

•  The Doctrine of Basic Structure holds that certain features of the Constitution are sacrosanct and cannot be altered or destroyed by amendments.

•  Judicial Interpretation:

•  The judiciary is empowered to review constitutional amendments and strike them down if they violate the basic structure.

Components of Basic Structure

•  Supremacy of the Constitution:

•  The Constitution as the supreme law of the land is considered an essential feature.

•  Republican and Democratic Form of Government:

•  The democratic framework, including free and fair elections, is integral to the basic structure.

•  Secularism:

•  The secular nature of the Indian state is a fundamental and unalterable principle.

•  Federal Structure:

•  The federal structure and distribution of powers between the Centre and states form a crucial part of the basic structure.

•  Rule of Law:

•  The principle that the law applies equally to all, including the government, is a fundamental component.

Impact on Constitutional Amendments

•  Limitation on Amending Powers:

•  The Doctrine of Basic Structure imposes a limitation on the power of Parliament to amend the Constitution.

•  Judicial Review:

•  The judiciary is empowered to review and strike down amendments that infringe upon the basic structure.

Landmark Cases Demonstrating the Doctrine

•  Golaknath Case (1967):

•  The initial affirmation that Parliament's amending power under Article 368 did not extend to Fundamental Rights.

•  Kesavananda Bharati Case (1973):

•  The case solidified the Doctrine of Basic Structure, establishing that Parliament cannot alter the Constitution's basic features.

•  Indira Gandhi v. Raj Narain (1975):

•  Judicial assertion of the basic structure during a constitutional crisis, emphasizing its importance.

Controversies and Debates

•  Scope of the Doctrine:

•  Ongoing debates surround the precise components included in the basic structure.

•   Balancing Act:

•  The challenge of striking a balance between Parliament's amending power and the need to protect the Constitution's core values.

Contemporary Relevance

•  Adaptability:

•  The Doctrine of Basic Structure continues to adapt to contemporary challenges, ensuring its relevance in evolving socio-political contexts.

Conclusion

The Doctrine of Basic Structure is a crucial element in India's constitutional jurisprudence, ensuring that the Constitution's fundamental principles remain intact. It establishes a delicate balance between the need for flexibility through amendments and the imperative to protect the Constitution's core values. 

As an evolving concept, the Doctrine of Basic Structure remains central to the constitutional governance of India, guiding the judiciary in preserving the essence of the Constitution while allowing for necessary adaptations to meet changing needs.

Impact of Basic Structure Doctrine on judicial review

•  The Doctrine of Basic Structure of the Constitution has enhanced the power of judicial review of the Supreme Court. Examine. (22/15)

•   “The basic structure doctrine is implicit in the Indian Constitution; the Supreme Court has only given it an explicit form.” Comment. (19/20)

Introduction

The assertion that the Basic Structure Doctrine is implicit in the Indian Constitution and has been explicitly articulated by the Supreme Court underscores the constitutional significance of preserving fundamental principles. 

Implicit Nature in the Constitution

•  Constitutional Integrity:

•  The concept of preserving the basic structure is inherent in the Constitution's foundational principles.

•  Preamble Significance:

•  The Preamble reflects the spirit and values that form the implicit basic structure.

Evolution of the Doctrine

•  Golaknath Case (1967):

•  The initial acknowledgment of limitations on Parliament's amending powers hinted at the implicit existence of a basic structure.

•  Kesavananda Bharati Case (1973):

•  The case marked a turning point, explicitly formulating the Basic Structure Doctrine through judicial pronouncement.

Foundational Principles

•  Sovereignty, Socialism, and Secularism:

•  Foundational principles enshrined in the Preamble represent an implicit basic structure.

•  Democratic Republic:

•  The democratic and republican form of government is intrinsic to the constitutional fabric.

Inherent Limitations on Amendment Powers

•  Judicial Interpretation:

•  The judiciary, through various judgments, implicitly recognized limits on Parliament's power to amend.

•  Preservation of Fundamental Rights:

•  Fundamental Rights being the cornerstone of the Constitution inherently embody a protected basic structure.

Explicit Formulation by the Supreme Court

•  Kesavananda Bharati Case (1973):

•  The apex court explicitly formulated the Basic Structure Doctrine, listing specific features that are beyond the amending powers of Parliament.

•  Judicial Review Authority:

•  The explicit articulation empowered the judiciary with the authority to review and strike down amendments inconsistent with the basic structure.

Components of the Basic Structure

•  Evolving Concept:

•  While explicitly formulated, the components of the basic structure continue to evolve through subsequent judicial interpretations.

•  Flexible Framework:

•  The doctrine's explicit form provides a flexible yet robust framework for constitutional interpretation.

Implications and Judicial Activism

•  Protection Against Arbitrary Amendments:

•  The Basic Structure Doctrine serves as a bulwark against arbitrary changes to the Constitution.

•  Balancing Act:

•  Allows the judiciary to strike a balance between constitutional rigidity and adaptability.

Critiques and Debates

•  Judicial Overreach Concerns:

•  Critics argue that the explicit articulation may lead to judicial overreach.

•  Need for Clarity:

•  Ongoing debates center around the need for clarity in defining the components of the basic structure.

Contemporary Relevance

•  Dynamic Application:

•  The Basic Structure Doctrine's explicit formulation ensures its dynamic and contemporary application in response to evolving societal needs.

Conclusion

The assertion that the Basic Structure Doctrine is implicit in the Indian Constitution emphasizes the underlying principles that guide constitutional governance. The explicit formulation by the Supreme Court in the Kesavananda Bharati case further strengthened the constitutional safeguard against arbitrary amendments. 

As an evolving concept, the Basic Structure Doctrine continues to play a crucial role in maintaining the constitutional balance and upholding the core values enshrined in the Indian Constitution.

Key cases where the doctrine was invoked and its impact on constitutional amendments:

Kesavananda Bharathi Case

•  Comment: Kesavananda Bharathi Case. (96/20)

Introduction

•  The Kesavananda Bharati case, a landmark in Indian constitutional history, marked a turning point in defining the limits of parliamentary power to amend the Constitution. 

Background

•  The case was adjudicated in 1973.

•  Context: Challenged the Kerala government's attempt to acquire the property of Kesavananda Bharati, a religious leader.

Core Issues

•  Limitations on Amending Power: The central issue was whether Parliament's power to amend the Constitution under Article 368 had any implied limitations.

•  Basic Structure Doctrine: The case laid the foundation for the Basic Structure Doctrine, asserting that certain features of the Constitution were beyond the amending powers of Parliament.

Evolution of the Doctrine

•  Golaknath Case (1967): The Golaknath case hinted at limitations on Parliament's amending power, setting the stage for Kesavananda Bharati.

Legal Proceedings

•   Supreme Court's Decision: The Supreme Court delivered a landmark 7-6 decision in favor of Kesavananda Bharati.

•  Basic Structure Doctrine Formulated: The majority held that while Parliament had the power to amend, it could not alter the basic structure of the Constitution.

Components of the Basic Structure

•  Flexibility and Dynamism: The court did not explicitly define the components of the basic structure, allowing for flexibility and adaptability.

•  Evolving Concept: The Basic Structure Doctrine has evolved over time through subsequent judicial pronouncements.

Significance

•  Judicial Review Authority: Reinforced the judiciary's authority to review constitutional amendments and strike down those infringing on the basic structure.

•  Preservation of Fundamental Rights: Ensured the protection of Fundamental Rights from arbitrary amendments.

•  Balance of Powers: Maintained a delicate balance between parliamentary sovereignty and the need to protect the Constitution's core values.

Subsequent Amendments and Cases

•  Post-Kesavananda Amendments: Subsequent amendments faced judicial scrutiny against the basic structure doctrine.

•  Indira Gandhi v. Raj Narain (1975): During the emergency, the court reiterated the importance of the basic structure, asserting its authority.

Contemporary Relevance

•  Dynamic Application: The Kesavananda Bharati case remains dynamically relevant, influencing constitutional interpretation in contemporary contexts.

•  Legal and Academic Debates: Continues to be a subject of legal and academic debates on the scope and components of the basic structure.

Conclusion

The Kesavananda Bharati case stands as a watershed moment in Indian constitutional jurisprudence. By formulating the Basic Structure Doctrine, the Supreme Court safeguarded the Constitution's essence from arbitrary amendments. 

The case has enduring significance, shaping the judiciary's role in upholding the Constitution's core values and ensuring a delicate balance between the powers of the legislature and the protection of fundamental principles.

Challenges and Criticisms

•  Ambiguity: The concept of "basic structure" can be subjective, leading to disagreements about what constitutes this core framework.

•  Undemocratic: Critics argue that the doctrine can be a form of judicial overreach, with unelected judges determining the constitution's core principles.

•  Lack of Clarity: The lack of a precise definition of "basic structure" can make it challenging to apply consistently.

•  Stifling Amendments: The doctrine's rigid interpretation may limit the ability to adapt the constitution to changing circumstances.

•  Clashes with Democracy: The doctrine may clash with the principle of popular sovereignty, as it can restrict the power of elected representatives to amend the constitution.

Comparative Perspectives

Comparing the Basic Structure Doctrine to Similar Doctrines in Other Countries

United States - Constitutional Supremacy

•  Supreme Court Authority: In the U.S., the Supreme Court has the power of judicial review, which enables it to strike down laws that violate the constitution. However, the U.S. Constitution itself does not explicitly contain a "basic structure."

Germany - Eternity Clause

•  Eternity Clause: Germany's Basic Law includes an "eternity clause" that protects certain fundamental principles from constitutional amendments. While similar to the basic structure doctrine, it explicitly outlines what cannot be changed.

South Africa - Foundational Principles

•  Foundational Principles: South Africa's constitution includes a set of foundational principles that cannot be amended easily. These principles are integral to the country's democratic order and mirror the idea of a "basic structure."

Comparative Analysis

•  Diverse Approaches: Different countries have diverse approaches to safeguarding fundamental constitutional principles.

•  Varied Interpretations: The scope and interpretation of similar doctrines can differ significantly.

Lessons That Can Be Drawn from Various Jurisdictions

•  Balancing Flexibility and Stability: A crucial lesson is to strike the right balance between allowing constitutional adaptation and preserving core principles.

•  Defining Core Principles: Explicitly defining what constitutes the "basic structure" or core principles can provide clarity and reduce subjectivity.

•  Respecting Democratic Will: The doctrine should respect the democratic will of the people and allow for constitutional change when necessary.

•   Avoiding Overreach: Jurisdictions should exercise judicial restraint and avoid overstepping their authority.

Conclusion

•  Education and Awareness: Promote public engagement and awareness about the doctrine to ensure that citizens understand its implications.

•  Revisiting the Doctrine: Some countries may consider revisiting or refining the basic structure doctrine through constitutional reforms.

•  National Dialogue: Encourage national dialogues to discuss the doctrine and seek consensus on its scope and application.

• Learning from Others: Jurisdictions can continue to learn from the experiences of other countries with similar doctrines to adapt and refine their approaches.

•  Ongoing Evaluation: Continuously evaluate the doctrine's effectiveness in safeguarding constitutional principles while respecting democratic values.