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  1. The Constitution offers 2 ways in which the Supreme Court can cure the infringement of freedoms
  2. Protection of Fundamental rights: It can restore fundamental rights by issuing writs (Article 32). The High Courts likewise have the ability to issue such writs (Article 226) 
  3. Judicial Review: The Supreme Court can declare the concerned law as unconstitutional and therefore non-operational (Article 13)

Judicial Review: 

  • It implies the force of the Supreme Court (or High Courts) to look at the lawfulness of any law assuming the Court comes to the end result that the law is conflicting with the arrangements of the Constitution, such a law is pronounced as unlawful and unimportant
  • The term legal survey has no place referenced in the Constitution
  • Notwithstanding, the way that India has a composed Constitution and the Supreme Court can strike down a law that conflicts with central privileges, verifiably provides the Supreme Court with the force of legal audit
  • On account of government relations, the Supreme Court can use the review powers expecting a law is clashing with the transport of capacities set somewhere near the Constitution
  • Together, the writ powers and the review power of the Courts make the judiciary very powerful

Judicial Review’s Importance

  •  It is necessary for the Constitution’s supremacy to be maintained
  • It is necessary to prevent the legislature and the executive from abusing their powers
  • It safeguards the people’s rights
  • It keeps the federal budget in check
  • It is necessary for the judiciary’s independence to be protected
  • It prevents executive tyranny

Judicial Review Issues

  •  It restricts the government’s ability to function
  • When it overrides any existing law, it goes against the constitution’s set limits on power
  • India follows a separation of functions rather than a separation of powers
  • The principle of separation of powers is not strictly followed. However, a system of checks and balances has been established, with the judiciary having the power to overturn any unconstitutional legislation enacted by the legislature
  • The judges’ judicial opinions, once adopted for any case, become the standard for deciding other cases
  • Judicial review can be harmful to the general public because it can be influenced by personal or selfish motives

Judiciary and Parliament:

  • The Indian Constitution is based on a delicate principle of limited separation of powers and checks and balances.
    • Parliament: It is supreme in making laws and amending the Constitution
    • Executive: It is supreme in implementing them
    • Judiciary: It is supreme in settling disputes and deciding cases
  • The court has been active in seeking to prevent subversion of the Constitution through political practice and brought powers of the President and Governor under the purview of the courts
  • The Supreme Court actively involved itself in the administration of justice by giving directions to executive agencies such as it gave directions to CBI to initiate investigations against politicians and bureaucrats in the hawala case, the Narasimha Rao case, etc

Tussle between the Parliament and the Judiciary

Major Issues: Over right to property and the Parliament’s power to amend the Constitution.

  • Immediately after the implementation of the Constitution:

    • The Parliament wanted to put some restrictions on the right to hold property for implementing land reforms
    • The Court held that the Parliament cannot thus restrict fundamental rights
    • The Parliament then tried to amend the Constitution
    • The Court said that a fundamental right cannot be abridged even through an amendment

  • Issues at the centre of the controversy:

    • Scope of Right to private property
    • Scope of the Parliament’s power to curtail, abridge or abrogate fundamental rights
    • Scope of the Parliament’s power to amend the constitution
    • The power of Parliament to make laws that abridge fundamental rights while enforcing directive principles

  • During the period – 1967 and 1973:

  • Apart from land reform laws, laws enforcing preventive detention, laws governing reservations in jobs, regulations acquiring private property for public purposes etc. were some instances of the conflict between the legislature and the judiciary.

  • Keshavananda Bharati case (1973):

  • The Court ruled that there is a basic structure of the Constitution and nobody – not even the Parliament (through amendment) – can violate the basic structure. 

  • The Court did two more things:

    • The court said that Right to Property (the disputed issue) was not part of the basic structure
    • The Court reserved to itself the right to decide whether various matters are part of the basic structure of the Constitution
  • The Right to property was taken away from the list of fundamental rights in 1979 and this also helped in changing the nature of the relationship between these two organs of government. 

Issues remaining as a bone of contention between the two:

These are about the scope of judicial intervention in and regulate the functioning of the legislatures.

  • In the parliamentary system, the legislature has the power to govern itself and regulate the behaviour of its members
  • The legislature can punish a person who it holds guilty of breaching privileges of the legislature
  • Issues:
    • About the protection of the court available to persons breaching parliamentary privileges
    • About the protection from court available to a member of the legislature against whom the legislature has taken disciplinary action
  • The Constitution provides that the conduct of judges cannot be discussed in Parliament