GS Notes

17. Polity Notes 42

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Elaborate Notes

DOCTRINE OF HARMONIOUS CONSTRUCTION

  • Origin and Meaning: This doctrine is a cardinal rule of statutory interpretation used by courts to resolve conflicts between two or more provisions within a law or between different statutes. It posits that every provision has a purpose and the court should strive to read the entire statute as a whole. The interpretation should be such that it avoids rendering any provision redundant or void and brings harmony between them. As articulated by the Supreme Court, “when there are, in an enactment, two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect may be given to both.”
  • Application in the Indian Constitution: The doctrine is frequently applied to reconcile conflicts between Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV), and between the legislative powers of the Union and the States (Union, State, and Concurrent Lists in the Seventh Schedule).
  • Historical Context and Judicial Precedents:
    • An early application can be traced to the case of In re the C.P. and Berar Act (1939), where the court harmonized entries in the federal and provincial legislative lists.
    • In the State of Bombay v. F.N. Balsara (1951), the Supreme Court applied this doctrine to resolve a conflict between a state law and a central law.
    • The case of Re Kerala Education Bill (1957), mentioned in the summary, is a landmark judgment where the Supreme Court, under Justice S.R. Das, held that while Fundamental Rights are paramount, the Directive Principles are fundamental to governance and must be considered. The court should adopt the principle of harmonious construction and give effect to both as much as possible, attempting a synthesis between them.
    • In Minerva Mills Ltd. & Ors v. Union of India & Ors (1980), the Supreme Court further solidified this by stating that the Indian Constitution is founded on the bedrock of the balance between Part III and Part IV. To give absolute primacy to one over the other would be to disturb the harmony of the Constitution. This harmony and balance is an essential feature of the basic structure of the Constitution.

DOCTRINE OF PLEASURE

  • Origin: The doctrine originates from the English common law principle ‘durante bene placito’ (during good pleasure), which signifies that a servant of the Crown holds office at the pleasure of the Crown and can be dismissed at any time without cause.
  • Indian Context: This doctrine has been incorporated into the Indian Constitution but with significant modifications and safeguards.
    • Article 155 & 156: The Governor of a state is appointed by the President and holds office “during the pleasure of the President” (Article 156(1)). This implies the President can remove a Governor without assigning any reason. However, the Supreme Court in B.P. Singhal v. Union of India (2010) held that this power cannot be exercised in an arbitrary, capricious, or unreasonable manner. The removal must be for valid reasons, though these need not be disclosed.
    • Article 310: This article explicitly states that members of the Defence Services, the Civil Services of the Union, and the All-India Services hold office “during the pleasure of the President.” Similarly, members of the state civil services hold office “during the pleasure of the Governor.”
  • Constitutional Safeguards (Restrictions on the Doctrine): The absolute power of the English doctrine is curtailed by Article 311.
    • Article 311(1): No civil servant shall be dismissed or removed by an authority subordinate to that by which they were appointed. This provides a procedural safeguard against arbitrary action by lower-level authorities.
    • Article 311(2): This provides a more substantial safeguard. It mandates that no civil servant shall be dismissed, removed, or reduced in rank except after an inquiry in which they have been informed of the charges against them and given a reasonable opportunity of being heard in respect of those charges. The Supreme Court in Union of India v. Tulsiram Patel (1985) elaborated on the scope of “reasonable opportunity,” reinforcing its importance.

DOCTRINE OF REPUGNANCY

  • Conceptual Framework: Repugnancy refers to a direct and irreconcilable conflict between two pieces of legislation. It arises when one law says “do” and the other says “don’t” about the same subject matter, or when compliance with one law is impossible without breaching the other.
  • Constitutional Provision - Article 254: This article specifically deals with inconsistency between laws made by Parliament and laws made by the Legislatures of States, particularly concerning the Concurrent List (List III) of the Seventh Schedule.
    • Article 254(1): If a state law is repugnant to a Union law which Parliament is competent to enact, or to an existing law with respect to one of the matters enumerated in the Concurrent List, then the Union law shall prevail, and the state law, to the extent of the repugnancy, shall be void.
    • Article 254(2): This provides an exception. If a state law on a Concurrent List matter contains any provision repugnant to an earlier law made by Parliament, the state law will prevail in that state if it has been reserved for the consideration of the President and has received his assent. However, Parliament can still override this state law by subsequently enacting a law on the same matter.
  • Judicial Interpretation:
    • In M. Karunanidhi v. Union of India (1979), the Supreme Court laid down the conditions for repugnancy: (1) a direct conflict between the two provisions; (2) Parliament intended to lay down an exhaustive code on the subject, superseding the state law; (3) a state law in the same field trenches upon the occupied field of the Union law.

DOCTRINE OF JUDICIAL REVIEW

  • Origin and Meaning: The concept is primarily attributed to the American judicial system, established in the landmark case of Marbury v. Madison (1803) by Chief Justice John Marshall. It empowers the judiciary to review the actions of the legislative and executive branches of government to determine if they are consistent with the Constitution. If found unconstitutional, the judiciary can strike them down.
  • Constitutional Basis in India: Though not explicitly mentioned as “judicial review,” the power is derived from several articles:
    • Article 13: Declares that any law inconsistent with or in derogation of Fundamental Rights shall be void.
    • Article 32 & 226: Empower the Supreme Court and High Courts, respectively, to issue writs for the enforcement of Fundamental Rights.
    • Article 131-136: Grant the Supreme Court jurisdiction in various matters, enabling it to interpret the Constitution.
  • Scope and Evolution:
    • Initially, the scope was debated, particularly concerning Parliament’s power to amend the Constitution.
    • In the landmark case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court propounded the ‘Doctrine of Basic Structure’, holding that while Parliament can amend the Constitution, it cannot alter its “basic structure.” Judicial review was declared to be a part of this basic structure.
    • In Minerva Mills v. Union of India (1980), the court struck down clauses of the 42nd Amendment Act that sought to place constitutional amendments beyond judicial review, reaffirming its importance.
    • The Supreme Court in the I.R. Coelho v. State of Tamil Nadu (2007) case held that any law placed in the Ninth Schedule after April 24, 1973 (the date of the Kesavananda Bharati judgment) would be open to challenge if it violates the basic structure of the Constitution.

DOCTRINE OF LACHES

  • Meaning: Laches is an equitable doctrine that can be invoked to deny relief to a claimant who has unreasonably delayed in asserting their claim, causing prejudice to the opposing party. It is based on the maxim ‘Vigilantibus non dormientibus aequitas subvenit’ (Equity aids the vigilant, not the indolent).
  • Application to Fundamental Rights: While procedural laws like the Limitation Act prescribe specific time limits for filing suits, there is no such period for filing a writ petition under Article 32. However, the Supreme Court can refuse to grant relief if there has been an inordinate and unexplained delay.
  • Judicial Stand: The courts have been cautious in applying this doctrine to cases involving the violation of Fundamental Rights.
    • In Tilokchand Motichand v. H.B. Munshi (1969), the court debated its applicability, with some judges favoring a reasonable time limit.
    • However, the general trend, as noted in the summary, is that courts are reluctant to dismiss petitions concerning fundamental rights solely on the ground of delay. The court will consider the reasons for the delay and the gravity of the rights violation. It is often considered of “academic interest” because if a fundamental right is being continuously violated, the cause of action is continuous, and the plea of laches may not be entertained.

DOCTRINE OF PROSPECTIVE OVERRULING

  • Meaning: This doctrine, also of American origin, allows a court to set a new legal precedent (“overrule” a previous one) but directs that the new rule will apply only to future cases and not retrospectively. This prevents the reopening of settled transactions and avoids unsettling the consequences of actions taken in good faith based on the previously existing law.
  • Introduction in India: The Supreme Court of India formally adopted this doctrine in the case of I.C. Golaknath v. State of Punjab (1967). Chief Justice Subba Rao, delivering the majority judgment, held that Parliament had no power to amend Fundamental Rights. To avoid chaos and protect past constitutional amendments from being invalidated, the Court applied the ruling prospectively. This meant that the decision would not affect the validity of amendments made prior to the date of this judgment.
  • Purpose: The primary objective is to balance the need for legal evolution and correction of past errors with the need for stability and certainty in the law. It prevents administrative and social chaos that might result from declaring a long-standing law void retrospectively.

DOCTRINE OF WAIVER

  • Meaning: Waiver is the voluntary and intentional relinquishment of a known right or privilege. An individual who waives a right is legally barred from later claiming it.
  • Applicability to Fundamental Rights in India: The Supreme Court has definitively held that Fundamental Rights, being a part of the basic structure and conferred by the Constitution not just for individual benefit but as a matter of public policy, cannot be waived.
  • Key Judgment: In Basheshar Nath v. Commissioner of Income-Tax (1959), the Supreme Court examined this issue in detail. The majority opinion held that an individual cannot waive their Fundamental Rights. Chief Justice S.R. Das reasoned that these rights are not just for the individual’s benefit but are a mandate to the state, and allowing them to be waived would be against public policy and the spirit of the Constitution.

CBI AND ENFORCEMENT DIRECTORATE (ED)

  • Central Bureau of Investigation (CBI)
    • Historical Background: The origins of the CBI lie in the Special Police Establishment (SPE) created in 1941 by the British Indian government to investigate cases of bribery and corruption in war-related procurements. After the war, the Delhi Special Police Establishment (DSPE) Act was enacted in 1946, giving the SPE a formal legislative basis. In 1963, the Government of India, through an executive resolution, established the CBI and transferred the functions of the DSPE to it.
    • Legal Status: The CBI is not a statutory body. It derives its powers of investigation from the DSPE Act, 1946.
    • Issue of General Consent: As ‘Police’ is a State Subject under the Constitution, the CBI requires the consent of the respective state government to conduct an investigation within its territory. This is known as “general consent.” Several states, including West Bengal, Punjab, and Kerala, have withdrawn this general consent, meaning the CBI must seek case-specific consent for any new investigation, which can be a cumbersome process. However, the Supreme Court or a High Court can order a CBI investigation anywhere in the country without the state’s consent.
    • Criticism and Judicial Remarks: The CBI has often been criticized for its lack of autonomy and susceptibility to political influence. The most famous critique came from the Supreme Court in the Coal Block Allocation Scam case (2013), where Justice R.M. Lodha described the CBI as a “caged parrot speaking in its master’s voice.” The Bofors scam investigation, which spanned over two decades and incurred huge expenses without a conclusive conviction, is often cited as a major failure.
  • Enforcement Directorate (ED)
    • Establishment and Mandate: The ED was formed in 1956 as an ‘Enforcement Unit’ to handle Exchange Control Law violations. It is a specialized financial investigation agency under the Department of Revenue, Ministry of Finance.
    • Governing Legislations: The ED’s primary role is to enforce two key laws:
      1. Foreign Exchange Management Act, 1999 (FEMA): A civil law dealing with foreign exchange matters.
      2. Prevention of Money Laundering Act, 2002 (PMLA): A criminal law to prevent money laundering and confiscate property derived from it.
    • Enhanced Powers and Controversies: Recent amendments to the PMLA have significantly enhanced the ED’s powers, including stringent bail conditions and a broad definition of the “proceeds of crime.” This, coupled with the guidelines of the Financial Action Task Force (FATF), has made the ED a very powerful agency. However, this has also led to allegations of its misuse for political purposes, with critics pointing to a disproportionate number of cases being initiated against opposition leaders.
  • Proposed Solutions: Reforms for these agencies, as suggested by bodies like the Second Administrative Reforms Commission (ARC), often include granting them statutory status, ensuring fixed tenures for their directors (which has been partially done), and establishing an independent oversight mechanism to ensure accountability and impartiality.

Prelims Pointers

  • Doctrine of Pleasure: Embodied in Article 310 of the Constitution.
  • Safeguards for Civil Servants: Provided under Article 311. Article 311(1) deals with the appointing authority, and Article 311(2) deals with the inquiry process.
  • Governor’s Tenure: A Governor holds office during the pleasure of the President (Article 156(1)).
  • Doctrine of Repugnancy: Dealt with under Article 254, concerning conflicts between Union and State laws on the Concurrent List.
  • Presidential Assent: Under Article 254(2), a state law on a concurrent subject can prevail over a central law if it has received the President’s assent.
  • Judicial Review: Power derived implicitly from Articles 13, 32, 226, 131-136. It is a part of the ‘Basic Structure’ of the Constitution (Kesavananda Bharati case, 1973).
  • Doctrine of Prospective Overruling: First applied by the Supreme Court in the I.C. Golaknath v. State of Punjab (1967) case.
  • Waiver of Fundamental Rights: Not permissible in India, as established in Basheshar Nath v. CIT (1959).
  • CBI:
    1. Not a statutory body; established by an executive resolution of the Ministry of Home Affairs in 1963.
    2. Derives investigation powers from the Delhi Special Police Establishment (DSPE) Act, 1946.
    3. Requires general consent from state governments to investigate cases within their jurisdiction.
  • Enforcement Directorate (ED):
    1. Agency under the Department of Revenue, Ministry of Finance.
    2. Enforces two main acts: Prevention of Money Laundering Act (PMLA), 2002, and Foreign Exchange Management Act (FEMA), 1999.

Mains Insights

  1. Constitutional Doctrines as Tools of Judicial Craftsmanship:

    • Cause-Effect: The ambiguity and complexity inherent in a written constitution necessitate judicial interpretation. Doctrines like Harmonious Construction, Repugnancy, and Judicial Review are not mere legal jargon; they are essential tools used by the judiciary to maintain the delicate constitutional balance.
    • Balancing Act: The Doctrine of Harmonious Construction is crucial for balancing the rights of the individual (Part III) with the socio-economic goals of the state (Part IV). Questions on the relationship between FRs and DPSPs can be enriched by discussing this doctrine as the mechanism for achieving the “harmony and balance” which is part of the basic structure.
    • Upholding Federalism: The Doctrine of Repugnancy (Article 254) is central to the functioning of Indian federalism. It provides a clear mechanism to resolve legislative conflicts in the concurrent sphere, thereby preventing administrative paralysis and ensuring the primacy of national interest where intended by the Constitution.

  2. The Autonomy of Investigating Agencies: A Crisis of Credibility:

    • Debate: The functioning of the CBI and ED is at the heart of the debate on cooperative federalism versus the centralizing tendencies of the Union government. The withdrawal of ‘general consent’ by states highlights the erosion of trust between the Centre and states.
    • Cause-Effect Relationship: The lack of statutory backing and functional autonomy for the CBI makes it vulnerable to executive influence. This perception of misuse erodes public trust and the credibility of its investigations. This can be linked to GS Paper II (Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies) and GS Paper IV (Probity in Governance, Accountability).
    • Historiographical Viewpoint: The narrative around these agencies has shifted from them being premier, elite institutions to being perceived as instruments of political vendetta. This shift can be traced through landmark cases and the increasing frequency of their deployment against political opponents, regardless of the party in power.
    • Way Forward: Answers on this topic should not merely criticize but also suggest structural reforms. This includes providing statutory status (as recommended by the L.P. Singh Committee), ensuring financial autonomy, having an independent appointment mechanism for the Director (like the Lokpal), and creating a parliamentary oversight committee.

  3. Doctrine of Pleasure: A Relic with Constitutional Chains:

    • Analysis: While the Doctrine of Pleasure sounds autocratic, its application in India is a classic example of constitutionalism, where power is limited by law. Article 311 acts as a fundamental check on the arbitrary exercise of power under Article 310.
    • Contemporary Relevance: The doctrine’s application to Governors (Article 156) remains a contentious issue, often linked to the politicization of the Governor’s office. The Supreme Court’s judgment in B.P. Singhal (2010) attempted to rein in this power, but its implementation remains a challenge, impacting Centre-State relations.

Previous Year Questions

Prelims

  1. With reference to India, consider the following statements: (UPSC Prelims 2021)

    1. Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in jail.
    2. During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: (b) Explanation: Statement 1 is incorrect. In judicial custody, the accused is lodged in a central or state prison under the custody of the magistrate. In police custody, the accused is held in a police station lock-up. Statement 2 is correct; interrogation during judicial custody requires court permission.

  2. The money laundering and the financing of terrorism are seen as the major threats to the financial system, political stability and national security. In this context, consider the following about PMLA, 2002. (UPSC Prelims 2023 - Question paraphrased for relevance)

    1. The Enforcement Directorate (ED) is the sole agency for investigating offences under the PMLA.
    2. The burden of proof under PMLA is on the accused to prove that the proceeds of crime are untainted.
    3. A statement recorded before an ED officer is admissible as evidence in a court of law. Which of the statements given above are correct? (a) 1 and 2 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3 Answer: (d) Explanation: All statements are correct. The ED is the primary investigating agency under PMLA. Section 24 of PMLA reverses the burden of proof onto the accused. Section 50 of the PMLA gives the recorded statement evidentiary value as ED officers are not considered ‘police officers’ under the Evidence Act.

  3. In India, which one of the following constitutional amendments was widely believed to be enacted to overcome the judicial interpretations of the Fundamental Rights? (UPSC Prelims 2023) (a) 1st Amendment (b) 42nd Amendment (c) 44th Amendment (d) 86th Amendment Answer: (a) Explanation: The First Amendment Act, 1951, was enacted to overcome judicial pronouncements, particularly in cases like State of Madras v. Champakam Dorairajan, which had struck down reservation policies, and cases related to land reforms (zamindari abolition). It introduced Article 31A, 31B, and the Ninth Schedule to protect these laws from judicial review on grounds of violating Fundamental Rights.

  4. Consider the following statements: (UPSC Prelims 2022)

    1. The Constitution of India classifies the ministers into four ranks viz. Cabinet Minister, Minister of State with Independent Charge, Minister of State and Deputy Minister.
    2. The total number of ministers in the Union Government, including the Prime Minister, shall not exceed 15 percent of the total number of members in the Lok Sabha. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: (b) Explanation: Statement 1 is incorrect. The Constitution does not classify ministers into ranks; this is a convention. Statement 2 is correct. The 91st Amendment Act, 2003 inserted Article 75(1A) which limits the size of the council of ministers to 15% of the total strength of the Lok Sabha. This indirectly relates to the Doctrine of Pleasure as ministers hold office at the pleasure of the President.

  5. With reference to the writs issued by the Courts in India, consider the following statements: (UPSC Prelims 2022)

    1. Mandamus will not lie against a private organisation unless it is entrusted with a public duty.
    2. Mandamus will not lie against a company even though it may be a Government company.
    3. Any public-minded person can be a petitioner to move the Court to obtain the writ of Quo Warranto. Which of the statements given above are correct? (a) 1 and 2 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3 Answer: (c) Explanation: This question relates to the scope of judicial review under Articles 32 and 226. Statement 1 is correct. Statement 2 is incorrect; Mandamus can lie against a government company performing public duties. Statement 3 is correct; Quo Warranto can be sought by any interested person, not necessarily the aggrieved person.

Mains

  1. The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular State is being questioned by various States. However, the power of the States to withhold consent to the CBI is not absolute. Explain with special reference to the federal character of India. (UPSC Mains GS-II 2021)

    • Answer Framework:
      • Introduction: Briefly introduce the CBI’s origin (DSPE Act, 1946) and its reliance on state consent for investigations, linking it to the federal structure where ‘Police’ is a State List subject.
      • States’ Power to Withhold Consent: Explain the concept of “general consent” under Section 6 of the DSPE Act. Mention the recent trend of states withdrawing this consent and the implications – CBI needing case-specific permission, leading to delays. Argue that this is an assertion of state autonomy within the federal framework.
      • Limitations on State’s Power (Not Absolute): Discuss the exceptions where state consent is not required. The Supreme Court and High Courts, under their writ jurisdiction (Articles 32 and 226), can order a CBI probe anywhere in the country to ensure justice and uphold fundamental rights, overriding the state’s objection. Cite relevant judgments like State of West Bengal & Ors. v. Committee for Protection of Democratic Rights (2010).
      • Federal Character Analysis: Analyze the tension between the necessity of a federal agency to probe inter-state crimes and corruption involving central employees, and the states’ constitutional domain over policing. Conclude by suggesting a path forward that strengthens cooperative federalism, perhaps through a new federal crime agency with a clear statutory mandate and built-in safeguards, as recommended by some committees.

  2. “The Central Administrative Tribunal which was established for redressal of grievances and complaints by or against central government employees, nowadays is exercising its powers as an independent judicial authority.” Explain. (UPSC Mains GS-II 2019)

    • Answer Framework:
      • Introduction: Mention the establishment of the CAT under Article 323-A of the Constitution via the Administrative Tribunals Act, 1985, to adjudicate service matters of government employees, reducing the burden on regular courts.
      • Powers and Functions: Detail the powers of CAT, which are akin to a civil court. It is not bound by the strict rules of the Code of Civil Procedure but is guided by principles of natural justice.
      • Exercising as an Independent Judicial Authority: Explain how its independence is asserted. Highlight the Supreme Court’s judgment in L. Chandra Kumar v. Union of India (1997), which struck down the provision of the Act that excluded the jurisdiction of High Courts (Article 226). This made CAT’s decisions subject to judicial review by High Courts, integrating it into the judicial mainstream. It acts as a court of the first instance, with its decisions having the force of a decree.
      • Conclusion: Conclude that while established as a tribunal for specific purposes, judicial pronouncements have ensured its functioning aligns with the principles of judicial independence and review, making it a vital part of the judicial framework for administrative justice.

  3. What are the challenges to the autonomy and impartiality of the premier investigating agencies in India? Suggest measures for reform. (Hypothetical question based on summary)

    • Answer Framework:
      • Introduction: Briefly state the importance of agencies like CBI and ED in combating corruption and serious economic offenses. Mention the recurring concerns about their autonomy.
      • Challenges to Autonomy and Impartiality:
        • Political Interference: Lack of statutory backing (for CBI), administrative control by the executive (DoPT for CBI, Dept. of Revenue for ED), and politically sensitive appointments and transfers.
        • Procedural Issues: Dependence on state government consent (CBI), leading to political friction.
        • Internal Issues: Lack of adequate manpower, resources, and modern training. Allegations of internal corruption.
        • Judicial View: Mention the Supreme Court’s “caged parrot” remark to substantiate the point.
      • Measures for Reform:
        • Statutory Status: Provide a separate statutory charter for the CBI, clearly defining its powers and jurisdiction.
        • Functional Autonomy: Ensure security of tenure for directors. Create an independent committee (like the Lokpal selection committee) for their appointment.
        • Financial Independence: Earmark a separate, non-lapsable fund for the agencies.
        • Accountability: Strengthen parliamentary oversight without compromising investigative independence.
      • Conclusion: Conclude that for these agencies to be effective guardians of the law, they must be institutionally insulated from political pressures while being accountable to the rule of law.

  4. The Indian Constitution is founded on the bedrock of the balance between Fundamental Rights and Directive Principles. Critically analyze. (UPSC Mains GS-II 2021, paraphrased)

    • Answer Framework:
      • Introduction: Explain the nature of FRs (justiciable, negative obligations on the state) and DPSPs (non-justiciable, positive obligations).
      • Initial Conflict: Describe the early judicial view giving absolute primacy to FRs (State of Madras v. Champakam Dorairajan).
      • Move towards Synthesis: Discuss how Parliament, through amendments, and the judiciary, through interpretation, sought to bridge the gap.
      • Doctrine of Harmonious Construction: Explain how the judiciary used this doctrine, starting from the Kerala Education Bill case, to give effect to both.
      • The Basic Structure Doctrine and the Final Balance: Detail the landmark Kesavananda Bharati case which held that harmony and balance between FRs and DPSPs is an essential feature of the Constitution. Reiterate this with the Minerva Mills case, which struck down the attempt by the 42nd Amendment to give absolute primacy to all DPSPs over FRs.
      • Conclusion: Conclude that FRs and DPSPs are not contradictory but complementary. They are two wheels of the same chariot, aiming to establish a welfare state. The current position is one of harmony and synthesis, where laws implementing certain DPSPs (like 39b and 39c) can be protected from challenges under Articles 14 and 19, provided they do not destroy the basic structure.

  5. Critically examine the scope of Judicial Review in India. How has it contributed to the evolution of the Constitution? (Hypothetical question based on summary)

    • Answer Framework:
      • Introduction: Define Judicial Review and state its constitutional basis in India (Arts 13, 32, 226).
      • Scope of Judicial Review:
        • Review of Legislative Action: Power to strike down laws that violate the Constitution.
        • Review of Executive Action: Power to check arbitrary executive orders.
        • Review of Constitutional Amendments: This is the most significant aspect.
      • Evolution through Judicial Pronouncements:
        • A.K. Gopalan (1950): Narrow interpretation.
        • Golaknath (1967): Expanded scope, stating FRs cannot be amended.
        • Kesavananda Bharati (1973): The Doctrine of Basic Structure was propounded, setting ultimate limits on Parliament’s constituent power and establishing judicial review as a part of this structure.
        • Minerva Mills (1980): Reaffirmed the basic structure doctrine.
        • I.R. Coelho (2007): Extended judicial review even to laws placed in the Ninth Schedule.
      • Contribution to Constitutional Evolution: Argue that judicial review has transformed the Constitution from a static document to a living one. It has protected individual liberties, upheld federalism, maintained the separation of powers, and ensured the supremacy of the Constitution.
      • Criticism/Conclusion: Briefly touch upon the criticism of judicial overreach but conclude that judicial review has acted as an indispensable tool for safeguarding constitutionalism and the rule of law in India.

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