Judicial Review is the power of constitutional courts to examine whether laws and governmental actions conform to the Constitution.
In the context of the Basic Structure Doctrine, Judicial Review performs a crucial function:
It allows the Supreme Court to examine Constitutional Amendments for violation of the Basic Structure.
The relationship can be understood as:
Article 368 → Amending Power
Basic Structure → Limitation
Judicial Review → Enforcement Mechanism
Judicial Review means the power of courts to determine whether:
are consistent with the Constitution.
If an action violates the Constitution, the court may declare it:
Unconstitutional
Judicial Review = Constitutional Validity Check
The Constitution does not contain one single Article titled:
"Judicial Review"
Instead, Judicial Review operates through several constitutional provisions.
Important provisions include:
The Supreme Court and High Courts exercise Judicial Review within their respective constitutional jurisdictions.
Article 13 provides protection against laws inconsistent with Fundamental Rights.
It declares that laws violating Fundamental Rights are void to the extent of inconsistency.
Therefore:
Article 13 → Judicial Review of Laws
Article 13 primarily concerns:
Ordinary Laws
Constitutional Amendments require separate consideration under:
Article 368
Article 32 provides the right to approach the:
Supreme Court
for enforcement of Fundamental Rights.
Dr. B.R. Ambedkar described Article 32 as the:
"Heart and Soul"
of the Constitution.
The Supreme Court can issue constitutional writs to protect Fundamental Rights.
Article 32 → Supreme Court + Fundamental Rights
Article 226 gives High Courts power to issue writs.
The jurisdiction under Article 226 is broader than Article 32 because High Courts can issue writs:
For Fundamental Rights + For Other Legal Rights
Article 32 → Fundamental Rights
Article 226 → Fundamental Rights + Other Legal Rights
The most important issue for this chapter is:
Can the Supreme Court review a Constitutional Amendment?
The answer is:
Yes
The Supreme Court can review a Constitutional Amendment to determine whether it violates the:
Basic Structure
Parliament derives its amending power from:
The Constitution
Therefore, Parliament cannot use that power to destroy the Constitution's:
Basic Structure
Judicial Review ensures that this limitation is enforceable.
Constitution → Gives Power
Basic Structure → Limits Power
Judiciary → Reviews Exercise of Power
In:
Shankari Prasad v. Union of India, 1951
the Supreme Court upheld Parliament's power to amend Fundamental Rights.
The Court treated Constitutional Amendments differently from ordinary "law" under Article 13.
At this stage:
Parliament's Amending Power → Broad
The Basic Structure Doctrine had not yet been established.
In:
Sajjan Singh v. State of Rajasthan, 1965
the Court again upheld Parliament's amending power.
However, some judges raised concerns about unrestricted constitutional amendment.
These concerns became important in the later development of the doctrine.
In:
I.C. Golaknath v. State of Punjab, 1967
the Supreme Court held that Parliament could not amend Fundamental Rights.
The Court treated a Constitutional Amendment as "law" for the purposes of Article 13.
Judicial Review was used to impose a limitation on:
Parliament's Amending Power
This decision triggered a major constitutional response from Parliament.
The:
24th Constitutional Amendment Act, 1971
strengthened Parliament's amending power.
It amended:
Article 368
and inserted:
Article 13(4)
which stated that Article 13 would not apply to Constitutional Amendments made under Article 368.
This attempted to remove the basis of the:
Golaknath
restriction.
The constitutional validity of the amendment was later considered in:
Kesavananda Bharati
In:
Kesavananda Bharati v. State of Kerala, 1973
the Supreme Court established the:
Basic Structure Doctrine
The Court held:
Parliament can amend the Constitution, including Fundamental Rights.
But:
Parliament cannot destroy the Basic Structure.
The Supreme Court therefore retained the power to determine:
Whether an Amendment Violates Basic Structure
Kesavananda → Amendment Power + Judicial Review + Basic Structure
Judicial Review itself has been recognised as part of the:
Basic Structure
This means Parliament cannot completely eliminate Judicial Review through Constitutional Amendment.
Kesavananda Bharati
Minerva Mills
A constitutional amendment cannot remove the constitutional mechanism required to protect the Constitution itself.
The next major development came in:
Indira Gandhi v. Raj Narain, 1975
The case concerned the:
39th Constitutional Amendment Act, 1975
The amendment attempted to place certain elections beyond ordinary judicial scrutiny.
The Court struck down the relevant constitutional provision.
It recognised:
Free and Fair Elections
as part of the Basic Structure.
The judgment demonstrated that:
Judicial Review extends to Constitutional Amendments
when they affect Basic Structure.
Indira Gandhi Case → Free and Fair Elections + Judicial Review
The:
42nd Constitutional Amendment Act, 1976
attempted to restrict judicial review of Constitutional Amendments.
It inserted provisions seeking to prevent courts from questioning amendments.
It also attempted to make Parliament's amending power effectively unlimited.
These changes directly challenged the Basic Structure principle.
In:
Minerva Mills v. Union of India, 1980
the Supreme Court struck down important provisions of the 42nd Amendment.
The Court reaffirmed:
Limited Amending Power
and:
Judicial Review
as part of the Basic Structure.
Parliament cannot use Article 368 to:
Eliminate Judicial Review
and:
Make Its Own Amending Power Unlimited
Minerva Mills → Judicial Review + Limited Amending Power
Judicial Review creates a system of:
Constitutional Checks and Balances
It ensures that:
Political Power → Constitutional Control
India follows:
Constitutional Supremacy
rather than absolute:
Parliamentary Sovereignty
Therefore:
Parliament is powerful but constitutionally limited.
The judiciary ensures that constitutional limits are respected.
The Basic Structure Doctrine is one of the strongest examples of:
Constitutional Supremacy over Parliamentary Majoritarianism
Parliament has the power to:
Amend
The Supreme Court has the power to:
Review
The Basic Structure Doctrine determines:
The Constitutional Boundary
Parliament → Change
Judiciary → Review
Basic Structure → Protect
Judicial Review of Constitutional Amendments can involve two broad questions.
Was the amendment passed according to the required constitutional procedure?
This includes:
Does the amendment:
Destroy Basic Structure?
The Basic Structure Doctrine mainly provides a:
Substantive Limitation
on the amendment power.
Certain federal provisions require:
Ratification by at least half of the States
This is a procedural safeguard.
But even after following the correct procedure, an amendment cannot:
Destroy Basic Structure
Correct Procedure ≠ Unlimited Power
Fundamental Rights are:
Amendable
after Kesavananda Bharati.
However, an amendment affecting Fundamental Rights can still be reviewed if it:
Damages Basic Structure
Fundamental Right → Can Be Amended
Basic Structure → Cannot Be Destroyed
The Preamble forms an important part of the constitutional framework.
It can be amended.
However, an amendment to the Preamble cannot destroy:
Basic Structure
The:
42nd Amendment
added:
The amendment did not make the Preamble completely unamendable.
Preamble → Amendable
Basic Structure → Protected
Article 368 provides Parliament's:
Constituent Power
However, Article 368 cannot be interpreted as granting:
Unlimited Power
The Supreme Court has held that:
Limited Amending Power
is itself part of the Basic Structure.
Therefore:
Article 368 + Basic Structure + Judicial Review
operate together.
The Ninth Schedule originally provided protection from judicial review.
However, the Supreme Court later developed important limitations.
The Court used:
24 April 1973
as an important constitutional dividing line.
The Court held that laws inserted into the Ninth Schedule after this date can be tested against:
Basic Structure
Ninth Schedule protection is:
Not Absolute
In:
I.R. Coelho v. State of Tamil Nadu, 2007
the Supreme Court strengthened judicial review of Ninth Schedule laws.
The Court held that Constitutional Amendments placing laws in the Ninth Schedule can be examined if they damage:
Basic Structure
I.R. Coelho → Ninth Schedule + Basic Structure Review
Judicial Review ensures that:
Constitutional Supremacy
is meaningful.
Without Judicial Review, constitutional limitations could become:
Practically Unenforceable
The Court therefore acts as:
Guardian of the Constitution
within its constitutional role.
Rule of Law requires:
Government Power to Remain Subject to Law and Constitution
Judicial Review enforces this principle.
Therefore:
Rule of Law + Judicial Review
protect against:
Arbitrary Government Power
Judicial Review does not mean that the judiciary governs the country.
Instead, it ensures:
Constitutional Boundaries
between the organs of government.
Makes laws.
Implements laws.
Interprets the Constitution and reviews legality and constitutionality.
Protects the essential institutional balance.
Judicial Review can function effectively only when courts are:
Independent
Therefore:
Judicial Independence
is closely connected with:
Judicial Review
Both are recognised as important Basic Structure principles.
No.
Parliament cannot use a Constitutional Amendment to completely eliminate Judicial Review because it forms part of the:
Basic Structure
Judicial Review → Cannot Be Completely Destroyed
Parliament may make:
Constitutionally Permitted Changes
to judicial jurisdiction and institutional arrangements.
However, it cannot destroy the:
Core Constitutional Function of Judicial Review
Modification → Possible
Complete Elimination → Not Permitted
The principle of:
Judicial Review
is protected.
However, this does not mean every procedural detail of judicial jurisdiction is permanently frozen.
Constitutional arrangements can be:
Modified
provided the essential function is preserved.
Core Principle → Protected
Every Detail → Not Necessarily Protected
The Supreme Court examines the:
Effect
of a Constitutional Amendment.
The question is:
Does the amendment damage or destroy the Basic Structure?
Therefore, the Court looks beyond merely:
Formal Language
and considers the:
Substantive Constitutional Impact
There is an important distinction.
A law may be challenged for violating:
A:
Constitutional Amendment
may be challenged for:
Destroying Basic Structure
Ordinary Law → Constitutional Validity
Constitutional Amendment → Basic Structure Test
The Constitution remains superior to political power.
Foundational constitutional principles remain protected.
Rights cannot be arbitrarily eliminated.
Free and fair elections remain protected.
The federal character cannot be destroyed.
The constitutional role of courts remains protected.
Government power remains subject to constitutional limits.
Critics argue that courts have created limitations:
Not Expressly Written in the Constitution
Parliament consists of elected representatives.
Judges are not directly elected.
Basic Structure has no exhaustive definition.
The doctrine may create tension between:
Parliament + Judiciary
Supporters argue that Judicial Review is necessary because:
Judicial Review protects the constitutional conditions under which democracy operates.
Shankari Prasad
→ Amending Power Upheld
Sajjan Singh
→ Amending Power Upheld
Golaknath
→ Fundamental Rights Protected
Kesavananda Bharati
→ Basic Structure
Indira Gandhi v. Raj Narain
→ Free and Fair Elections + Review
Minerva Mills
→ Limited Amending Power + Judicial Review
Waman Rao
→ Ninth Schedule Review
I.R. Coelho
→ Ninth Schedule + Basic Structure Review
Judicial Review → Basic Structure
Kesavananda Bharati → Basic Structure
Article 368 → Amending Power
Minerva Mills → Judicial Review + Limited Amending Power
Indira Gandhi Case → Free and Fair Elections
Waman Rao → Ninth Schedule + 24 April 1973
I.R. Coelho → Ninth Schedule Review
Article 32 → Supreme Court + Fundamental Rights
Article 226 → High Court Writ Jurisdiction
Article 13 → Laws inconsistent with Fundamental Rights
The Constitution contains a separate Article titled "Judicial Review."
False
Judicial Review operates through multiple constitutional provisions.
Parliament can completely abolish Judicial Review through Constitutional Amendment.
False
Judicial Review is part of the:
Basic Structure
Judicial Review applies only to ordinary laws.
False
It can also apply to:
Constitutional Amendments
under the Basic Structure Doctrine.
Fundamental Rights cannot be amended after Kesavananda Bharati.
False
They can be amended subject to Basic Structure.
Every Ninth Schedule law is completely immune from judicial review.
False
I.R. Coelho established important limits.
Judicial Review makes the Supreme Court politically superior to Parliament.
False
It makes:
The Constitution Supreme
not the judiciary.
Following the correct Article 368 procedure automatically makes an amendment valid.
False
An amendment can still be challenged for:
Basic Structure Violation
For:
"Explain the relationship between Judicial Review and the Basic Structure Doctrine."
Use:
Define Judicial Review and mention:
Kesavananda Bharati, 1973
Golaknath
↓
Kesavananda Bharati
↓
Indira Gandhi
↓
Minerva Mills
↓
Waman Rao
↓
I.R. Coelho
Judicial Review ensures that constitutional amendment remains constitutional change rather than constitutional destruction.
"Judicial Review is the mechanism through which constitutional courts enforce the supremacy of the Constitution. In the context of the Basic Structure Doctrine, it enables the Supreme Court to examine whether Parliament's exercise of constituent power under Article 368 crosses the constitutional boundary by damaging or destroying the Constitution's Basic Structure."
"The relationship between Judicial Review and the Basic Structure Doctrine represents India's model of constitutional supremacy. While Parliament retains wide authority to adapt the Constitution, Judicial Review ensures that such adaptation does not destroy the foundational principles that give the Constitution its identity."
Constitutional Validity Check
Ordinary Laws + Fundamental Rights
Supreme Court + Fundamental Rights
High Court + FR + Other Legal Rights
Constitutional Amendment
Limit on Amending Power
Enforces the Limit
Golaknath → Restriction
Kesavananda → Basic Structure
Indira Gandhi → Free and Fair Elections
Minerva Mills → Limited Power + Judicial Review
Waman Rao → Ninth Schedule
I.R. Coelho → Ninth Schedule Review
Article 368
→ Parliament's Amending Power
↓
Basic Structure
→ Substantive Limitation
↓
Judicial Review
→ Enforcement Mechanism
↓
Supreme Court
→ Reviews Constitutional Amendments
↓
Constitutional Supremacy
→ Final Constitutional Principle
Parliament can amend the Constitution.
The Supreme Court can review Constitutional Amendments.
The Basic Structure cannot be destroyed.
Judicial Review ensures that this limitation remains enforceable.
