The relationship between parliamentary supremacy and judicial review represents a fundamental constitutional tension in India, reflecting the balance between democratic legislature and independent judiciary.
Parliamentary Supremacy Concept:
1. Traditional Doctrine:
Associated with Westminster system
Parliament is sovereign and supreme
Legislature cannot be limited by external authority
Court cannot question parliamentary actions
2. British Tradition:
Parliament supreme in lawmaking
Courts interpret and apply laws
No written constitution limiting Parliament
Judicial Review Concept:
1. Definition:
Power of courts to examine and potentially invalidate legislative and executive actions
Based on constitutional supremacy
Courts ensure government acts within constitutional limits
2. Basis in Indian Constitution:
Article 13: Laws inconsistent with Constitution are void
Article 32: Right to constitutional remedies
Article 226: High Court jurisdiction
Article 142: Supreme Court's discretionary powers
Evolution in Indian Constitutional Practice:
1. Phase 1: Early Years (1950-1970):
Court deference to Parliament ("doctrine of harmonious construction")
Presumption of constitutionality of laws
Reluctance to strike down legislation
Example: Kesavananda Bharati case initially moved towards deference
2. Phase 2: Activism Period (1970s-1980s):
Kesavananda Bharati v. State of Kerala (1973) - Basic Structure Doctrine
Court established that Parliament cannot amend basic features
Marked turning point towards judicial assertiveness
Indira Gandhi's Emergency (1975-77) - Tested constitutional limits
Increased judicial review of executive and legislative actions
3. Phase 3: Consolidation (1980s-2000s):
Public Interest Litigation (PIL) emerged
Court involvement in policy matters
Environmental and social justice issues
Example: Oleum gas leak case, Bhopal disaster litigation
4. Phase 4: Contemporary Era (2000s-present):
Continued judicial activism in various domains
Scrutiny of constitutional amendments
Questions on judicial overreach
The Basic Structure Doctrine:
1. Kesavananda Bharati Judgment (1973):
Established that Parliament cannot amend basic features
Basic features include: sovereignty, federalism, secular character, etc.
Judicial review of constitutional amendments possible
Most significant development limiting parliamentary sovereignty
2. Implications:
Parliament cannot exercise absolute sovereignty
Constitutional amendment subject to judicial scrutiny
Fundamental principles protected from amendment
Examples of amendments struck down/modified:
42nd Amendment (partially struck down)
99th Amendment (subject to scrutiny)
Arguments for Parliamentary Supremacy:
1. Democratic Legitimacy:
Parliament represents elected people
Legislature more accountable to public
Judicial legislation without democratic mandate problematic
2. Separation of Powers:
Judiciary should not usurp legislative function
Courts should interpret, not make law
Judicial activism threatens separation of powers
3. Expertise:
Legislature better positioned for policy decisions
Elected representatives closer to people
Courts lack democratic mandate
4. Stability and Certainty:
Excessive judicial review creates uncertainty
Frequent reversals undermine rule of law
Parliament's will should prevail
Arguments for Judicial Review:
1. Constitutional Supremacy:
Constitution superior to any law
No authority above Constitution
Judicial review ensures constitutional adherence
2. Fundamental Rights Protection:
Courts are custodians of rights
Legislature may violate fundamental rights
Judicial check necessary
3. Checks and Balances:
Review prevents authoritarian governance
1975 Emergency showed need for checks
Separation of powers requires mutual accountability
4. Minority Protection:
Parliament is majority rule
Minority rights need independent protection
Courts can check majoritarian overreach
5. Rule of Law:
No one above law, including Parliament
Constitutional amendment also subject to limits
Basic Structure protects constitutional values
Current Position in Indian Constitution:
1. Modified Parliamentary Supremacy:
Parliament supreme but not absolute
Bound by Constitution
Cannot amend basic features
2. Judicial Review Confirmed:
Courts can review parliamentary laws
Constitutional amendments subject to review
Basic Structure Doctrine firmly established
3. Balance Attempted:
Judiciary respects legislative sphere
Parliament respects constitutional limits
Both accountable to Constitution
Challenges and Debates:
1. Judicial Overreach Concerns:
PIL leading to judge-like decisions
Interfering in executive functions
Institutional competence questions
Examples: Environmental regulation, disaster management
2. Parliamentary Resistance:
Attempts to dilute judicial review
Constitutional amendments to curtail review
99th Amendment and collegium debate
3. Finding Right Balance:
How much judicial intervention is appropriate?
When does interpretation become legislation?
How to protect rights without overreach?
4. Practical Issues:
Large case backlogs in courts
Implementation challenges
Need for institutional coordination
— ADITYA PATHAK · AIR 189