Judicial Review Challenging Parliamentary Sovereignty

I. Introduction

Our government rests on three pillars, namely, the Legislature, the Executive, and the Judiciary. The Legislature and the Executive are those organs that are innately dependent on one another to function democratically and efficiently. The Judiciary secures the position of ensuring that these bodies act by staying inside the boundaries provided to them by the constitution, working independently. Judicial Review is the special and ultimate power given to the Indian Judiciary by virtue of which it pronounces any legislative and executive act null and void if it violates the constitution. The power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution, is an integral and essential feature of the Constitution, constituting a part of its basic structure³. The rule of law states no body, even the judiciary itself is not above the Constitution. Assurance of the fundamental rights to the citizens is also deemed to be insignificant if the Court does not have ability to ensure something similar from the self-assertive infringement. Now, the force of the Judicial Review became pertinent. Through this legal audit termed as judicial review, the court now has the power and responsibility to check the administrative steps violating the fundamental rights provided to the citizens by our constitution.

II. Origin of judicial review

The most remarkable element of the US Supreme court is its special power of Judicial Review. As the protector of the constitution, the Judiciary has the legal duty of assessing the laws which might clash with the constitution of the country and also repudiate unconstitutional administrative steps.

Marbury v. Madison⁴ was the turning point in US Administrativ Legal History since it laid down the foundation of Judicial Review which was later adopted by our Constitution. Written in 1803 by Chief Justice John Marshall, the choice assumed a key part in making the Supreme Court a different part of government comparable to Congress and the leader.

In settling the case, Chief Justice Marshall responded to three inquiries. To begin with, did Marbury reserve an option to the writ for which he appealed? Second, did the laws of the United States permit the courts to give Marbury such a writ? Third, in the event that they did, could the Supreme Court issue such a writ? Concerning the main inquiry, Marshall decided that Marbury had been appropriately delegated as per systems set up by law and that he in this way reserved a privilege to the writ. Also, on the grounds that Marbury had a legitimate right to his bonus, the law should manage the cost of him a cure. The Chief Justice proceeded to say that it was the specific obligation of the courts to ensure the privileges of people - even against the leader of the United States. At that point, Marshall's meagerly masked talk to President Jefferson about law and order was considerably more questionable than his assertion about the judicial review.

It was in response to the third question - regardless of whether a writ of mandamus given from the Supreme Court was the legitimate cure - that Marshall resolved the topic of the judicial review. The Chief Justice decided that the Court couldn't give the writ since Section 13 of the Judiciary Act of 1789, which conceded it the option to do as such, was illegal to the extent that it reached out to instances of original jurisdiction. Original Jurisdiction - the ability to bring cases straightforwardly to the Supreme Court - was the just jurisdictional matter managed by the actual Constitution. As per Article III, it applied uniquely to cases "affecting ambassadors, other public ministers and consuls" and to cases "in which the state shall be a party." By stretching out the Court's unique locale to incorporate cases like Marbury's, Congress had surpassed its authority. What's more, when a demonstration of Congress is in a struggle with the Constitution, it is, Marshall said, the commitment of the Court to maintain the Constitution on the grounds that, by Article VI, it is the "supreme law of the land." Because of Marshall's choice, Marbury was denied his bonus - which probably satisfied President Jefferson. Jefferson was not satisfied with the talk given him by the Chief Justice, in any case, nor with Marshall's insistence on the Court's ability to survey demonstrations of Congress. For key reasons, Marshall didn't say that the Court was the solitary mediator of the Constitution (however he trusted it would be) and he didn't say how the Court would uphold its choices if Congress or the Executive went against them. Yet, by his convenient statement of judicial review, the Court started its climb as an equivalent part of government - an equivalent in capacity to the Congress and the president. All through its long history, when the Court expected to avow its authenticity, it has referred to Marshall's viewpoint in Marbury v. Madison.

III. Judicial review in india

The idea of Judicial Review contrasts with the US Constitution from where it has been incorporated as far as the rigidity with which it is followed is concerned. Any law passed by the legislature that repudiates the Constitution can be termed invalid by the Judiciary. Under Article 13(2) of the Constitution of India, any law made by the parliament that abbreviates the right presented to individuals under Part 3 of the constitution is void-ab- initio. The ultimate authority to decipher the Constitution of India exists in the list of powers of the Judiciary, safeguarding the Constitution of India. The doctrine of judicial review is thus firmly rooted in India and has the explicit sanction of the Constitution ⁵. The presence of judicial review in India dates back to the British Raj since our country follows the same Common Law System. The first case, post independence where we see the concept of judicial review being highlighted was Shankari Prasad V. Union of India ⁶, where the Zamindars challenged the constitutional validity of the

First Amendment Act 1951 on the ground that it violates fundamental rights and Article 13(2) of the Constitution of India and contended that Article 31 is unconstitutional. We’ll study the details of the case later in the paper. Nevertheless, the intricacies of legal Indian History suggest that the foundation of Judicial Review was laid down after the Golaknath case further clarified that the Legislature does not have the right to amend Part III of the Constitution. For this case, the legitimacy of the seventeenth Amendment Act of 1964 was tested again and was alluded to a bigger seat of 11 Judges. The previous judgment made in Shankari Prasad and Sajjan Singh ⁷ was overruled by the bench by the proportion of 6:5 and held that the word Law in Article 13 incorporates constitutional change made under Article 368.

The 24th Amendment of 1971 gave rise to the controversy surrounding the phenomenal powers enshrined to the Parliament as far as amendment of the Constitution was concerned, which was ultimately settled in the landmark Kesavananda Bharati case in 1973.

In the case of Kesavananda Bharati v State of Kerala⁸, the petitioner i.e. Kesavananda Bharati was the central pontiff of the Edneer Mutt, an ascetic strict establishment situated in Kasaragod locale, Kerala. Bharati had some land in the Mutt, which he claimed. The Kerala state government passed the Land Reforms Amendment Act in 1969. According to this Act, public authorities could obtain a portion of the terrains that had a place within the Mutt. In March 1970, Bharati moved to the Supreme Court in adherence to seek Constitutional remedies as per Article 32 and thus authorize the rights that were ensured to him.

The Kerala state government authorized another law, the Kerala Land Reforms (Amendment) Act, 1971 even as the appeal was under the court's thought. The conflicts made by the petitioner brought the legitimacy of different corrections that were acquired by the Parliament to invalidate the impacts of Golaknath v State of Punjab⁹. The petitioner challenged, specifically, three protected changes – 24th Amendment, 25th Amendment, and 29th Amendment and their legitimacy. According to the petitioners, the Parliament cannot alter the Constitution in a way they need, as their ability to do this is restricted. The Parliament cannot make a revision to the Constitution to change its fundamental construction as was stated by Justice Mudholkar in the Sajjan Singh case¹⁰. They even identified the 24th and 25th Constitution Amendment violative to the Fundamental Rights provided in Article 19(1)(f).

Majority of the bench wished to shield the Constitution by safeguarding its fundamental components. The judgment depended on solid thinking and it was given after a cautious examination of diverse perspectives. The judge's bench opinionated that if the Parliament was to get free ability for amendment, there were chances of the same to be abused according to their own inclinations and impulses. Such boundless forces vested in the possession of the public authority would imply that the fundamental components and furthermore the very quintessence and soul of the Indian Constitution could be challenged. There was a requirement for a principle that could ensure the privileges of both the Indian Parliament and Indian residents; the seat addressed this issue midway and concocted the fundamental construction regulation, which secures the privileges of the two camps. The judge's bench decided that the personality and soul of the Constitution have not been lost. This landmark case has given our Constitution the stability required in a Federal System. Despite the fact that the petitioner lost this case to some extent, the SC administering the Kesavananda Bharati case ended up being a guardian angel for the Indian majority rule government and furthermore kept the Constitution from losing its spirit.

Seven years preceding this judgment, in the case of Minerva Mills v. Union of India¹¹, the Court further observed that the tool of amendment of the Constitution cannot be used to destroy the constitution itself. This case was significant for its declaration of sections 4 and 55 of the 42nd Amendment Act constitutional and also a landmark judgment to uphold the concept of basic structure of the constitution. However, the judgement could not repeal Article 31C as expanded by the 42nd Amendment nor delete it from the Constitution. As Austin observed, "The Minerva Mills case upholding the basic structure, the Supreme Court ensured that it would remain the foundation of the country's Constitutionalism ¹². We’ll indulge in a further detailed study on this judgment later in this paper.

IV. Constitutional provisions of judicial review in india

The constitution being the supreme law of the land lays down the provisions which a lot the power and limitations to the Judiciary regarding the exercise of this special power of judicial review which falls under their normal jurisdiction. The following are the articles that discusses about the power given to Courts regarding judicial review :

➤ Article 13 clearly states that any legislation or existing law that shall violate the supreme law of the land, the Constitution shall cease to exist.

➤ Article 32 Gives the right to constitutional remedies which implies that an individual has the right to move to the Hon. Supreme Court if his fundamental rights are hampered¹³. This Court has thus constituted the protector and guarantor of fundamental rights.

➤ Article 226 This article provides the distinctive power of issuing writs or judicial orders to the High Court in order to safeguard the rights of civilians. These are mandamus, habeas corpus, certiorari and co warranto respectively.

➤ Article 143 Adjudicates the advisory jurisdiction of the Supreme Court. If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is inevitable to surpass the opinion of the Supreme Court, he is allowed to consult the respective body for the mentioned purpose.

➤ Article 372(1) States that every law in power within the territorial domain of India preceding the initiation of this Constitution shall continue to hold relevance until altered or amended by the Parliament or any other competent authority.

➤ Article 131-136 This chain of articles hands over the power of settling interstate and personal disputes to the courts along with enshrining them with the authority of being the sole interpreter of the Constitution. All the Courts are hence obliged to accept and follow the interpretation made by the Supreme Court, the guardian of the Constitution.

➤ Article 245 & 246(3) States that the powers of both Parliament and the State Legislature are subject to the provisions of the constitutions. Any legitimacy of any legislation can be challenged before the court of law on that particular subject matter or if the law infringes any fundamental right.

➤ Article 251 & 254 Designs that in case of a clash between the State Laws and Union Parliament legislation, the latter shall have the last say.

V. Suo moto performance of judicial review by the court

The court reached the resolution that specific orders have been passed illegally and in an arbitrary manner, the court can practice the force of judicial review ¹⁴. In the case of Vinay Kumar v State of UP ¹⁵, the court held that in cases documented for the public interest, the court can issue a writ petition only in the case of a third party just when it is shown that the lawful off-base or illegal proceeding or unlawful burden is bound on that person and such person or determined class of person is by reason of neediness, powerlessness or socially or monetarily in a much-diminished position than his opponent, unfit to approach the court for alleviation. In this way, from the above statement, it stands clear that a third individual, having no worry with the current case, can't profess to have any locus standi to raise any complaint at all, under ordinary conditions. In exceptional situations as alluded above, if the real person is abused, due to obliviousness, ignorance in explanation or on the other hand acute destitution, are unable to move to court, and a third individual, who has no close relations or purpose with the corresponding party moves toward the court, then, at that point, the court may look into the issue and in remarkable conditions, regardless of whether his bona fides are doubted but nevertheless, the matter raised by the individual if considered worth the Court’s time, the Court may continue suo motu, in such regard which means that it’ll move forward with the case proceedings without advancement from the aggrieved party. If we throw light on the case of Raju Ramsingh vs Mahesh Deorao ¹⁶, it comes to our knowledge that the court clearly

stated -

“We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the Appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. The Supreme Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as public interest litigation but as public law litigation instead. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party is guilty of commission of fraud on the Constitution. If such an inquiry subserves the greater public interest and has a far-reaching effect on the society, in our opinion, the Supreme Court will not shirk its responsibilities from doing so.”

VI. How is judicial review chall-enging parliamentary sovereign-ty in india?

Eminent British Jurist, AV Dicey interprets Parliamentary Sovereignty in the following manner -

“The Principle of Parliamentary Sovereignty means neither more nor less than this: namely that Parliament thus defined has under the English Constitution, the right to make or unmake any law whatever and further no person or body is recognized by the law of England having a right to override or set aside the legislation of Parliament.”

However, the Indian Parliament does not share equal powers as the British Parliament. The laws which are implemented in our country need to be compulsorily passed by the Lower and Upper House of the Parliament. The Constitution is considered the supreme law in our land but the Legislature has also been provided with the right of amending specific laws as and when required, according to Article 368 of the constitution. But there are certain conditions that the Parliament needs to fulfil and certain limitations that it cannot violate in order to prevent the judiciary from exercising judicial review.

The drafting fathers of The Indian Constitution had followed the centre course between the American arrangement of Judicial Supremacy and the British standard of Parliamentary Sovereignty, by enabling the Judiciary with the ability of Judicial Review and the Parliament with the Sovereign authority of amending the Constitution with certain limitations.

DD Basu has accurately observed¹⁷ -“The harmonisation which our Constitution has effected between Parliamentary Sovereignty and a written Constitution with a provision for Judicial Review, is a unique achievement of the trainers of the Constitution.”

Each law made by the parliament is dependent upon interpretation by the Supreme Court in virtue of goals and ethics of the constitution. The Indian Constitution doesn't specifically provide provisions for the partition of judicial and parliamentary stronghold over one another however it's not indecipherable too. It is the right of the Parliament to make necessary amendments in the constitution and make laws; it is the obligation of the Judiciary to judge if the fundamental construction of the constitution or the basic structure is getting contravened by those, through its power of judicial review. We have witnessed clashes between parliamentary and judicial supremacy. The best example is the National Judicial Appointment Commission when the Supreme Court articulated its decision on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), announcing them to be ultra vires the Constitution. The facts confirm that the constitution has given superior powers of review to the Judiciary to choose the defendability of the laws passed by the legislature. National Judicial Appointments Commission (NJAC) was a proposed body which would have been liable for the appointment, arrangement and transfer of judges and judicial experts in India. The 99th Constitution Amendment Act, 2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, marked the establishment of this Commission. The NJAC would have traded the collegium framework for the recruitment of judges as conjured by the Supreme court by means of a different procedure. Alongside the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was additionally passed by the Parliament to manage the responsibilities of the National Judicial Appointments Commission. The NJAC Bill and the Constitutional Amendment Bill, was approved by 16 of the state legislatures in India, and consequently consented by the then President of India, Late Pranab Mukherjee on 31 December 2014. The NJAC Act and the Constitutional Amendment Act came into power from 13 April 2015.

On 16 October 2015, the Constitution Bench of Supreme Court by 4:1 majority maintained the collegium system and struck down the NJAC stating it to violate the constitution in the wake of hearing the petitions documented by many people and bodies with Supreme Court Advocates on Record Association (SCAoRA) being the primary petitioner. Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had pronounced the 99th Amendment and NJAC Act unconstitutional while Justice Jasti Chelameswar was in the Commission’s favor.

Over here we discussed a recent amendment where the Judicial sovereignty was enshrined but the sovereignty of the Parliament was always not been repulsed by our Judiciary. There have been

cases where the Parliament uplifted it’s amending supremacy over judicial review. For instance, the 1951 case of Shankari Prasad vs. Union of India ¹⁸ after the introduction of the first amendment act where it was challenged in the Supreme Court.

After closely observing the facts of the case some very important issues were raised, questions were asked on the validity of Article 31A and 32B of the Constitution of India. Whether the fundamental rights provided in Part III of the constitution can be amended by the parliament under Article 368? whether the word 'law' used in Article 13 additionally incorporates the constitutional amendment acts (constituent laws)?

The case was heard under the steady supervision of the Supreme Court by a five-judge Bench wherein the judgment was conveyed by Hon'ble Justice M Patanjali Shastri. The court maintained the legitimacy of the First Constitutional Amendment Act (1951) and subsequently declined the petitioner’s challenge.The Court observed that “ In the context of Article 13 law must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Article 13(2) does not affect amendments made under Article 368.” Hence, the revision made under Article 368 isn't influenced by Article 13(2). It additionally held that the jurisdiction of the Parliament to change the constitution under Article 368 likewise incorporates the ability to amend Fundamental Rights too. The court, by deciphering the significance of Article 13 for this situation, has given a degree for amending the ambiguities in this arrangement. It has additionally helped in extending the destinations of Article 13 and Article 368. As a matter of fact, the judgment gave parliament an absolute power to amend everything in the constitution including basic features such as Fundamental Rights. It would not be inaccurate to say that this allotment is an instance of giving them the power to establish a dictatorship and leaving the real sovereign (people of the country) at the mercy of the parliament which is the sole reason why the Kesavananda Bharati judgment holds immense vitality in upholding the basic structure doctrine.

The Fourth and the Seventeenth Constitutional Amendment Acts passed by the Parliament were challenged in the Supreme Court - Sajjan Singh v. State of Rajasthan (1965). The Court amended its judgment in the Shankari Prasad case by its 3:2 majority enabling the Parliament to amend any part of the constitution including the Fundamental Rights and also Article 368.

Later in 1967, in the case of I.C Golak Nath, the 1st, 4th and 17th Amendments, adding laws to the 9th Schedule were challenged on the basis of these clashing with the fundamental right of property ownership.

The issues involved in this case were whether amendment of the Indian Constitution is a “law” under the meaning of Article 13(3)( a), and whether Fundamental Rights can be amended or not. CJI Subba Rao, representing 5 Judges held that Article 368 states only As it gets its force from Article 248 i.e Residuary Power (as not referenced explicitly) that is a conventional law, so the trial of Article 13 will apply.

The Supreme Court with the minimum majority of 6:5 overruled the judgment of Shankari Prasad and Sajjan Singh. It altered the Constitution from awarding excess powers of amendment to the Parliament including the provisions regarding Fundamental Rights. This was concluded by revising articles 13 and 368 to avoid amendments made under article 368, from article 13's denial of any law abbreviating or removing any of the Fundamental Rights.

Since as per Article 13(2), the parliament couldn't make any law that reduces the Fundamental Rights contained in Part III of the Constitution, likewise being an ordinary law under the significance of Article 13, couldn't be infringing upon the articles stating the fundamental rights. Hence, all established alterations hitherto which were in repudiation or which had made a special case for fundamental rights section of the Constitution were supposed to be nullified.

After this landmark case 24th Amendment of 1971, came to diminish the effect of the Golaknath judgment, providing us with Article 13(4), which says that any amendment made under Article 368 is not a law under Article 13. It also changed the Marginal note of Article 368 to Power of parliament and procedure to amend the constitution.

Before long the 25th Amendment of 1971 came which changed "compensation" in Article 31(2) to "amount" to eliminate the commitment that the public authority will undoubtedly give pay. It incorporated Article 31C to the constitution which expressed that Article 14,19,31 will not matter to a law established to effectuate the concept under Article 39(b) and (c)[DPSP]. However all the factors concerning the basic structure were not deciphered by the bench which in turn led to the confusion regarding the landmark judgment of Kesavanada Bharati which successfully maintained the equilibrium between the Judiciary and the Executive which we have already discussed above.

Maintaining the legitimacy of clause 1 of article 13 and a resembling provision in article 368(3), embedded by the 24th Amendment, the Court found comfort in settling with the view that the Parliament has the ability to amend the fundamental rights. In any case, the Court attested one more proposition additionally affirmed in the Golaknath case, by deciding that the term "amendment" of this Constitution in article 368 signifies any inclusion or alteration in any of the provisions of the Constitution inside the expansive arena of the Preamble and the Constitution. Applied to fundamental rights, it was stated that while these rights can't be repealed, reasonable reduction or amendment of fundamental rights could be implemented in the public interest. The genuine position is that each provision of the Constitution can be amended provided that the basic structure remains unaltered. Eminent justices like H.R Khanna, Y.V Chandrachud, Chief Justice SM Sikri, JM Shelat and many others were the signatories of this respective statement while four other judges namely A.N Roy, K.K. Mathew, M.H. Beg and S. N. Dwivedi declined the statement.

In 1975, there was another landmark case following the declaration of emergency by Late PM Mrs. Indira Gandhi where Mrs. Gandhi was accused of electoral malpractices. The judgment of Indira Nehru Gandhi vs. Raj Narain¹⁹ revised the judgment given by the Supreme Court in Kesavananda Bharati and repeated the doctrine of basic structure.

After analysing all the facts thoroughly, a question arose on the constitutional validity of 39^th Constitutional Amendment Act, 1975 and regarding the constitutionality of Representation of People (Amendment) Act, 1974 and Election Laws (Amendment) Act, 1975.

The decision on Mrs.Gandhi was a bold choice reminding the Parliament of its place in the constitution. The Parliament was reminded that the Judiciary is there to maintain the Constitution and save the electoral system from destructive activities of the legislature. The court for this situation maintained the principle of separation of power which constructs a balanced governance in the democratic system. The court demonstrated that the Parliament is by law and not its the other way around. Parliament's new course, to set up its unchallenged dominance and the endeavor to make itself over the constitution was demolished by the Supreme Court. The court maintained the pith of India as a democracy - reasonable and healthy political competition. Justice Khanna held that without a framework where individuals can choose their delegates through a free and fair polling system is certainly not an arrangement of a democracy. The reproved alteration attempted to make appointment of PM, President, VP, and Speaker of Lok Sabha baseless which is absolutely against the embodiment of a democracy. The amendment attempted to make the Parliament to supreme extent where regardless of how ill-conceived their political decision, one can't challenge it. According to Justice YV Chandrachud, “The 39th amendment is violative of the principle of separation of power as it intentionally transferred a purely judicial function into the hands of the legislature”. Chief Justice Ray found another basic feature violated by the said amendment, that is, the rule of law.

The 42nd Amendment Act was introduced in 1976 to impose the sovereignty of the parliament. Needless to say this was a decisive move to demolish the balance between Parliamentary supremacy and Judicial Review. Minerva Mills vs. Union of India ²⁰ came up as a landmark case to challenge this ambiguous intention of the Parliament. Minerva mills is a material plant situated close to Bengaluru, Karnataka. The Central Government approved the National Material Corporation Limited, which was a body framed under the Industries Development Act, 1951 to assume control over the administration of Minerva Plants. The Court declared it unconstitutional and mentioned that judicial review is a basic part of democracy. A 42nd amendment was passed in the parliament which changed Article 31C through Section 4 of the Constitutional Amendment Act, 1976. Further. Section 55 of the 42nd Constitutional Amendment Act, 1976 made alterations in Article 368.

The judgment of the case was partitioned into 4:1, Y.V. Chandrachud ( CJI then ) composing for the benefit of himself and (A.C. Gupta, N.L. Untwalia, P.S. Kailsam JJ.) while Justice P.N. Bhagwati composed the disagreeing assessment. The larger part struck down Section 55 and 4 of the 42nd Amendment, as it was infringing upon essential design along these lines maintaining the Basic Structure concept, set in the Kesavananda Bharati case. Bhagwati J. composed the disagreeing argument, as in, he concurred with the larger part about to start striking down Section 55. The court held that the recently presented Clause 4 and 5 were really embedded to bar the courts from engaging in any trial on the topic of the legitimacy of the established amendments. The court flawlessly depicted the significance of Judicial Review in the accompanying words. Our Constitution is established on a decent overall influence among the three wings of the state, specifically the Legislature, the Executive, and the Judiciary. It is the domain of the Judges and their obligation to articulate upon the legitimacy of laws. The court held Section 55 of the Constitutional Amendment act 1976 void since it originally made the trial in court null and secondly it eliminates each one of the limitations on the force of Parliament under Article 368. The court correctly deciphered the genuine objective of these new conditions which was to discard the restrictions forced by the Kesavananda judgement on the Parliament.

The court likewise clarified the connection between the arrangements of Part III and Part IV of the Constitution. The court said that the whole Indian Constitution settles upon the establishment of Part III and Part IV. To give outright power to one over another will tamper with the precision of the Constitution. Finding some kind of harmony between the arrangements of Part III and Part IV is the place where equity lies and making one section compliant to another would just prompt confusion. The arrangements of Part IV should be accomplished without revocation of Fundamental Rights and anything which shuffles this order disregards the fundamental equilibrium of the Constitution. Consequently, the court in severe terms set out that the harmony between Directive Principles of State Policy (DPSP) and Fundamental Rights is the Basic Structure of the Constitution.

Justice Bhagwati J. concurred with the larger part in striking down Section 55 of the Constitutional Amendment Act since it made the judicial review of the amendments incomprehensible. In his view, this rejection of judicial review is in a roundabout way broadening the extent of Parliament's sovereignty on the amendment. Concerning. His Lordship concluded that it can't eliminate any uncertainty which didn't exist. Notwithstanding, the change in Article 31 C was held substantial by him since he was of the assessment that the court ought not on direct hold any law made under it unlawful. As he would see it the courts should investigate the essence of the law by following the Doctrine of Pith & Substance. In the event that the law is generously associated with the arrangements referred under DPSP, it would be a sacred law and in actuality, in case there is no nexus between the law and the DPSP's it would be doubtlessly struck down.

The court said while examining Article 368 and its clause 4 that the provision which provides that the validity of the amendment act cannot be brought before any court is also unconstitutional.After examining the power given to the judiciary, which is power of judicial review is one that creates checks and balances between the organs of the state. This power of judicial review is necessary to prevent the Parliament from turning despotic. The abolition of the power of judicial review would hold the whole provisions under Part III of the Constitution that deals with the fundamental right unenforceable. The power of the Parliament is restricted through Article 13 of the Constitution. Thus, the court highlighted that if the amendment laws are not given the power of judicial review, then these amendments which come under the ordinary law would also not be brought under the power of judicial review.

Subsequently, the court by 4:1 larger part held sections 4 and 55 of the 42nd Constitutional (Amendment) Act, 1976 invalid. The Judges must decide the validity of the laws passed and if the Court is deprived of its power then the controlled constitution would become an uncontrolled one.

The Minerva Mills judgment was later overruled in the Waman Rao ²¹ case of 1981, with a majority of 4:1. The court held that all the laws included in the Ninth Schedule prior to the Kesavananda case would receive the protection of Article 31B. However, the Acts and Regulations inserted in the Ninth Schedule post this landmark judgement, would not be protected under Article 31B and would be open to judicial scrutiny on the grounds of being in violation of the basic structure of the Constitution. Justice Bhagwati offered a disagreeing viewpoint and stated that the majority has maintained Article 31A by conjuring the convention of stare decisis and not on its own benefits. He upheld that Article 31A was secured in the Kesavnanda Bharati case which links the current verdict on the grounds of stare decisis.

These are a few remarkable and worth mentioning cases that indeed directed the path of judicial review and Legislative authority in India and we can clearly see that the hon’ble Supreme Court had always invested utmost effort in maintaining the equilibrium between the Parliament and the Judiciary. Clearly, the doctrine of ‘basic concept’ of the Constitution has intensified the vulnerability and disarray in the working of the Indian political framework. This is so on the grounds that, there has been no preponderance of agreement with respect to the basic structure among the Judges and no majority judgment is accessible which might uncover the rundown of the enumeration of the basic structure of the Constitution. Thus, the Supreme Court may bit by bit set up the Judicial Supremacy over Parliamentary Sovereignty through the tenet of basic structure of the Constitution. It would lead to a constitutional irregularity between the Parliament and the Supreme Court. The Supreme Court started viewing Article 14 (Right to Life and Liberty) and Article 21 (Right to Freedom) with additional significance after 1980 and thus securing the fundamental rights of citizens was its top priority.

Thus, we can clearly see that the power of judicial review is coming into use for the maximum number of times when the basic structure of the constitution becomes vulnerable to amendment. Different judgments over the period of time, after the landmark cases of Kesavananda Bharati and Minerva Mills, have depicted various elements to be incorporated into the basic structure list both in the Parliament’s and also in Judiciary’s favour. For instance in the PV Narsimha Rao case ²², the court opined to include Parliamentary Democracy under the basic structure doctrine. The Supreme court observed free and fair elections along with democratic and republican structure as a domain of basic structure in the case of Kihoto Hollohan ²³ while the Court added Democracy, Secularism, Judicial Review and Unity and Integrity of the Nation as elements of the basic structure in the judgment of SR Bommai ²⁴.

Analyzing all the case references and theories discussed above we can finally conclude the relationship between Parliamentary Sovereignty and Judiciary’s elite power of Judicial Review. The Parliament can amend any part of the supreme Constitution by gaining the respective majority in both the Houses including Article 368 and the fundamental rights but the basic structure of the constitution must not be hampered. The Parliament is the supreme law making body of the land but can never exceed the superiority of the constitution. The elements incorporated under basic structure have remained debatable as we have seen above and therefore a closed set of basic structure doctrine was never articulated. The court has the authority to consider the components as per various judgments.

VII. Conclusion

The power of Judicial review is indeed a special power handed over to the Judiciary, thanks to the American Constitution. The concept of checks and balances of the constitution stays intact by this power. But it is also necessary for the Judiciary to not misuse the authority given to them as the sole interpreter of the supreme constitution. The legislations and amendments shall only be opposed by the Supreme Court if they are arbitrary and tend to upset the basic structure of the Constitution. The Supreme Court should disclose the components of basic structure of the Constitution by a majority judgement and also provide decisive and authentic reasons to rescind the legislation or amendment raised in the Parliament. The Parliament or the Judiciary are expected to work staying within their own spheres and thus respect the separation of powers among the three pillars of the government. The power of the Courts is to analyze the demonstrations of the legislature and not to substitute its own approaches or personal beliefs on the citizens or the Assembly. The system of judicial review is expected to act as a guardian of protection of our constitution and guarantees individual fundamental rights and also safeguards many features of not only India as a democratic republic but also a federal nation. But there still remains questions regarding how efficiently the Supreme Court is executing this power and if the basic structure of the constitution is clearly depicted in the judgments. The Supreme Court acts as the sole guardian of the constitution and thus the Judiciary, which is already independent in nature, gets an added power of supervision over the other two organs which might lead it into arbitrariness. Nevertheless, the Judiciary needs additional powers to regulate the working of the Executive and the Judiciary towards well organized and methodical running of the administration and thus protecting the values in a democracy and also preserving the sanctity of our constitution, the supreme law, above all.

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