Busting the Myth of Absolute Judicial Review in India

The myth that the Indian Constitution grants absolute judicial review powers to the judiciary is one that has been debunked in recent years, yet it still persists among many law students, including those preparing for the TS LAWCET.

Understanding the Limits of Judicial Review

The Indian Constitution, under Article 13(2), explicitly states that no law can be made that takes away or abridges any of the fundamental rights enshrined in Part III. However, the myth of absolute judicial review suggests that the judiciary has unfettered powers to strike down any law it deems unconstitutional.

The Role of the Executive

This myth is often perpetuated by those who believe that the judiciary can unilaterally decide on the constitutionality of any law. However, this ignores the crucial role of the executive in the legislative process. Under the doctrine of parliamentary supremacy, the executive has the power to introduce and pass laws, which are then subject to judicial review. This means that the judiciary cannot strike down a law simply because it disagrees with the executive's decision.

Landmark Case: Keshavananda Bharati v. State of Kerala (1973)

In the landmark case of Keshavananda Bharati v. State of Kerala (1973), the Supreme Court of India held that Parliament's power to amend the Constitution is not unlimited, but it is subject to certain limitations. The court ruled that the amendment power cannot be used to alter the basic structure of the Constitution. This decision has been interpreted as limiting the judiciary's power to review the constitutionality of laws passed by Parliament.

The Concept of Basic Structure

The concept of basic structure was first introduced in the Keshavananda Bharati case and has since been reiterated in several subsequent judgments. It refers to the fundamental features of the Constitution, including the principles of federalism, secularism, and the rule of law. The judiciary has used this concept to strike down laws that are deemed to be in conflict with these fundamental principles.

Challenges to the Myth

The myth of absolute judicial review has been challenged in recent years by several judgments, including the 2015 decision in the Rajesh Sharma case. In this case, the Supreme Court held that the judiciary's power to review the constitutionality of laws is not absolute and is subject to certain limitations. The court ruled that the judiciary can only review the constitutionality of laws that are challenged before it, and not those that have not been challenged.

Implications for Law Students

For law students preparing for the TS LAWCET, it is essential to understand the limitations of judicial review in India. The myth of absolute judicial review has been debunked, and the judiciary's power to review the constitutionality of laws is subject to certain limitations. By understanding these limitations, law students can better navigate the complex landscape of constitutional law and prepare themselves for the challenges of the legal profession.

So, Can the Judiciary Always Save the Day?

The answer, as we have seen, is no. While the judiciary has an important role to play in ensuring that the Constitution is respected, its power to review the constitutionality of laws is not absolute.