Question 10GS2GS2

Discuss the parliamentary supremacy vs judicial review debate in the context of the Indian Constitution.

Introduction

The relationship between parliamentary supremacy and judicial review represents a fundamental constitutional tension in India, reflecting the balance between democratic legislature and independent judiciary.

24 words

Main Body

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

724 words35 paragraphs89 bullet points

Conclusion

Indian constitutional practice has evolved from initial parliamentary dominance to a balanced system of 'modified parliamentary supremacy' with robust judicial review. The Kesavananda Bharati judgment fundamentally shifted this by establishing the Basic Structure Doctrine, placing constitutional values above parliamentary amendment. While this ensures protection of fundamental rights and constitutional principles, challenges remain in defining the appropriate scope of judicial intervention without compromising democratic legitimacy. The ideal remains constitutional fidelity where both Parliament and judiciary respect constitutional boundaries while serving their respective constitutional roles.

83 words

Comprehensive historical evolution of the doctrine
Clear explanation of Kesavananda Bharati judgment
Balanced presentation of both parliamentary and judicial perspectives
Discussion of practical implications and challenges
Recognition of attempts to balance supremacy and review
Multiple dimensions of analysis (legal, democratic, practical)

Open original scan

Page 10

Topper

ADITYA PATHAK

AIR 1892025

Subject & Paper

GS2GS2

Topic

Parliamentary Supremacy and Judicial Review

Constitutional Balance

Evolution and Current Position

Writing Stats

831

Total words

Paragraphs

Bullets

Formal and analytical

Tone