Constitutional Law: Judicial Review and the Doctrine of Basic Structure —  Balancing Power and Principle 

Introduction 

Constitutional law serves as the bedrock of a nation’s legal framework, delineating the  organization, powers, and duties of government institutions while safeguarding fundamental  rights. In India, the Constitution serves not merely as a legal framework but as a dynamic,  evolving instrument that embodies the aspirations and values of its people. Two vital concepts  — Judicial Review and the Doctrine of Basic Structure — play a crucial role in maintaining  the integrity of this document and ensuring a balance between the law-making powers of the  legislature and the Constitution’s sovereign status. These doctrines empower the judiciary to  act as the guardian of constitutional values and protect democratic principles from potential  erosion. 

Judicial Review: A Constitutional Mandate 

Judicial Review refers to the authority of the judiciary to assess the constitutionality of laws  enacted by the legislature and actions taken by the executive. If any law or executive action is  found to be inconsistent with the Constitution, particularly the Fundamental Rights, the  judiciary has the authority to strike it down. 

Origins and Evolution 

Judicial Review originated in American legal tradition, most notably through the landmark case  Marbury v. Madison (1803)¹, where Chief Justice John Marshall asserted that it is the distinct  role and responsibility of the judiciary to interpret the law. 

In the Indian context, Judicial Review is not merely a judicial innovation but a constitutionally  enshrined mechanism. Articles 13, 32, 131–136, 143, 226, and 246 collectively establish and  strengthen this constitutional authority. For instance, Article 13(2) bars the state from enacting any law that infringes upon or diminishes fundamental rights, declaring such laws void to the  extent of their inconsistency. 

Scope of Judicial Review in India 

Judicial Review in India operates on three fronts: 

1. Legislative Actions: To ensure laws passed by Parliament or State Legislatures conform to constitutional provisions.
2. Executive Actions: To review administrative decisions for legality, arbitrariness, or abuse of power.
3. Constitutional Amendments: Subject to review under the Basic Structure Doctrine.

Unlike in the UK, where Parliamentary sovereignty reigns supreme, the Indian Constitution  ensures that no branch of the government is above the Constitution. This framework establishes  a system of checks and balances, placing Judicial Review as an essential mechanism to uphold  the rule of law. 

The Genesis and Fundamentals of the Basic Structure Doctrine 

The Basic Structure Doctrine emerged as a judicial response to attempts by the legislature to  alter the core identity of the Constitution through constitutional amendments. 

The Kesavananda Bharati Case (1973) 

The landmark decision in Kesavananda Bharati v. State of Kerala (1973)² laid the foundation  for the Basic Structure Doctrine. The case arose in the backdrop of a series of constitutional  amendments, notably the 24th, 25th, and 29th Amendments, which aimed to curtail the  judiciary’s role and assert Parliament’s power to modify any provision of the Constitution,  including the Fundamental Rights. 

In a closely split 7:6 decision, the Supreme Court ruled that although Parliament possesses  broad authority to amend the Constitution under Article 368, it cannot modify the “basic  structure” of the Constitution or the fundamental framework of the Constitution. Though the  term “basic structure” was not explicitly defined, the Court identified several elements, such  as: 

• Supremacy of the Constitution
• Rule of Law
• Separation of Powers
• Judicial Review
• Federalism
• Secularism
• Sovereign Democratic Republic
• Free and Fair Elections
• Fundamental Rights

This doctrine implied that the Constitution is not merely a political document but a living  charter with inherent limitations on the amending power. 

Balancing Parliamentary Sovereignty and Constitutional Supremacy 

The evolution of the Basic Structure Doctrine reflects a nuanced effort to strike a balance  between two competing imperatives: Parliamentary Sovereignty and Constitutional  Supremacy. 

While Parliament represents the will of the people and must have the flexibility to respond to  changing societal needs, it cannot be allowed to compromise the core values of the  Constitution. The Basic Structure Doctrine acts as a constitutional compass, guiding legislative  action without stifling democratic change. 

The judiciary, through Judicial Review, ensures that amendments and laws do not violate these  core tenets. This system promotes a form of “constitutional dialogue” where Parliament legislates, but the judiciary interprets and reviews those laws in light of enduring constitutional  principles. 

Key Judicial Pronouncements Reinforcing the Doctrine 

Indira Nehru Gandhi v. Raj Narain (1975)³

In this case, the Supreme Court invalidated Clause (4) of Article 329A (inserted by the 39th  Amendment) which sought to place the election of the Prime Minister beyond judicial scrutiny.  The Court held that this violated the principle of free and fair elections, a part of the basic  structure. 

Minerva Mills v. Union of India (1980)⁴

This case further reinforced the Basic Structure Doctrine. The Court struck down sections of  the 42nd Amendment which attempted to limit Judicial Review and gave primacy to Directive  Principles over Fundamental Rights. It reaffirmed that maintaining harmony and balance  between Parts III and IV of the Constitution constitutes an essential element of the basic  structure. 

S.R. Bommai v. Union of India (1994)⁵

The Court held that secularism is part of the basic structure and that the use of Article 356  (President’s Rule) to dismiss state governments must pass the test of constitutional propriety  and judicial scrutiny. 

I.R. Coelho v. State of Tamil Nadu (2007)⁶

This ruling established that laws added to the Ninth Schedule after April 24, 1973—the date of  the Kesavananda Bharati judgment—remain subject to Judicial Review if they infringe upon  Fundamental Rights or undermine the basic structure of the Constitution. 

Criticism and Controversies 

Although it plays a crucial role in safeguarding constitutional values, the Basic Structure  Doctrine has faced criticism. 

1. Lack of Precision: The absence of a definitive list of basic features has led to ambiguity and judicial subjectivity.
2. Judicial Overreach: Critics argue that unelected judges, through the doctrine, sometimes usurp the role of elected representatives, undermining parliamentary democracy.
3. Tension between Judiciary and Legislature: The doctrine has often been a source of friction, especially when legislations reflecting popular will are struck down.

Nonetheless, the doctrine has generally been hailed as a necessary judicial innovation to  prevent authoritarianism and constitutional subversion. 

Comparative Perspective 

Interestingly, the concept of judicially imposed limits on constitutional amendments has  inspired similar debates in other jurisdictions. 

• Germany: The Basic Law (Grundgesetz) explicitly bars amendments that affect the federal structure, human dignity, or democracy.
• Pakistan: The Supreme Court has adopted a form of the basic structure doctrine in recent decisions, despite the lack of explicit textual support.
• Bangladesh: The judiciary initially rejected the doctrine but later accepted it in Anwar Hossain Chowdhury v. Bangladesh (1989)⁷, establishing limits on the power to amend.

These global parallels affirm that the Indian judiciary’s efforts to guard constitutional identity  are not isolated but part of a broader constitutionalist movement. 

Judicial Review in the Contemporary Era 

In the present era, the role of Judicial Review and the Basic Structure Doctrine has expanded  in response to complex issues such as digital rights, environmental governance, gender justice,  and economic policy. 

For example: 

• The Supreme Court’s acknowledgment of the right to privacy as a fundamental right in Justice K.S. Puttaswamy v. Union of India (2017)⁸ reinforced its role in protecting essential liberties. 
• In Navtej Singh Johar v. Union of India (2018)⁹, the Court decriminalized consensual same-sex relations, upholding individual dignity — an integral element of the basic structure.

These decisions underscore how Judicial Review and the Basic Structure Doctrine continue to  evolve in response to societal shifts while remaining anchored in foundational principles. 

Conclusion 

The doctrines of Judicial Review and Basic Structure are not antagonistic to democracy; rather,  they are intrinsic to its survival. By limiting the scope of constitutional amendments and  safeguarding against arbitrary legislation, these doctrines ensure that power is exercised  responsibly, and principles enshrined in the Constitution endure across generations. 

In a rapidly changing socio-political landscape, these judicial tools serve as stabilizers,  enabling constitutional adaptation without compromising core values. They embody the spirit  of constitutional morality — the idea that governance must always be aligned with justice,  equality, liberty, and dignity. 

While debates around judicial activism and parliamentary supremacy are bound to continue,  what remains undisputed is the pivotal role of Judicial Review and the Basic Structure Doctrine  in maintaining the sanctity and vitality of the Indian Constitution.

Reference(S):

¹ Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

² Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

³ Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1. 

⁴ Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 

⁵ S.R. Bommai v. Union of India,(1994) 3 SCC 1. 

⁶ I.R. Coelho v. State of Tamil Nadu,(2007) 2 SCC 1.

⁷ Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Special Issue) 1 (Bangl.)

⁸ Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1. 

⁹ Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.