Judicial review and basic structure doctrine

Abstract

One of most crucial constitutional mechanisms in India is the judicial review which, as the highest law of the land, permits the courts to check the legality of legislative and executive acts. The Supreme Court of India has over time continued to widen this scope, to not only include Acts of Parliament, but also executive determinations, administrative actions, the exercise of powers by subordinate courts, and in this way, the Indian judiciary has evolved to reflect one of the strongest powers in the world. Judiciary review is based upon the supremacy of the constitutional law: any law or action, which contradicts the supremacy of the constitutional law must be declared inadmissible and threats to the supremacy of the constitutional law. Articles 13, 32, 131136, 137, 226, 246, and 368 of the Indian Constitution specifically provides the right to audit the legislative branch by the judicial branch, Acts deemed unconstitutional by the Judiciary can be struck down by the Courts. Judicial review was further reinforced by the Basic Structure Doctrine which was first pronounced in a landmark case, Kesavananda Bharati case (1973). This paper critically analyzes the extent of judicial review in India, its development and limitations with a special reference to the Basic Structure Doctrine, judicial activism as well as the limits to legitimate judicial interpretation and overreach. The paper examines the provisions of the constitutions, landmark cases and comparative views in the USA, Germany, United Kingdom, South Africa, and France. The results hint at the possibility that judicial activism has played a critical role in safeguarding the rights of the people and aligning the gaps in the legislation, other than taking on the role of filling legislative voids.