Opinion SC did not overreach its powers in the Tamil Nadu case

These assertions are contrary to the intent of the framers of the Constitution, to its very text, and several judgments of the Supreme Court. These indicate that in matters related to the interpretation of the Constitution, the Supreme Court has the final word. Further, while the Court has on occasion overstepped its domain, allegations of judicial overreach cannot be made in either of the two cases referred to.

Judicial review and the Constituent Assembly

It was clear to the Constituent Assembly that the courts would be entrusted with the power to strike down primary legislation. Members such as Chimanlal Shah argued that this power was inherent in constitutions with a chapter of rights. In a speech supporting Ambedkar’s resolution for the adoption of the Constitution, Alladi Krishnaswami Ayyar stated, “The limitation on the different organs of the state can be preserved in no other way than through the medium of courts.” He went on to call the Supreme Court “the ultimate arbiter in all matters involving the interpretation of the Constitution”.

Nehru was of the view that the judiciary could not stand in judgment over the sovereign will of the Parliament, but would concede that the authority of Parliament was subject to “scrutiny of the superior courts in case of some grave error, in case of contravention of the Constitution or the like.”

The power to review and strike down legislation is manifest from a reading of several constitutional provisions. Article 13(2) proscribes the state from making “any law which takes away or abridges fundamental rights”. Article 245(1) allows the Parliament and state legislature to enact laws “subject to the provisions of this Constitution”. Further, Article 32 guarantees a right to move the Supreme Court for the enforcement of fundamental rights.

The Court’s exercise of the powers of judicial review

Shortly after the Constitution came into force, the Patna High Court (in June 1950) struck down as unconstitutional a law that allowed the government to take over estates of the zamindars without compensation.

Following this and other early decisions, an exasperated Nehru wrote to the chief ministers stating, “It is impossible to hang up urgent social changes because the Constitution comes in the way… We shall have to find a remedy, even though this might involve a change in the Constitution”. A series of constitutional amendments followed.

The First Amendment put land-reform statutes beyond the scope of judicial review. While debating the amendment in Parliament, Nehru refrained from a frontal attack on the judiciary, saying instead that the Constitution had been “kidnapped and purloined by the lawyers”.

In the initial years, the courts upheld the Parliament’s power to amend the Constitution, including the chapter on rights. The position changed with the judgment in Golaknath, wherein it was held that Parliament could not abridge fundamental rights. The basic structure doctrine was introduced in Kesavananda Bharati, which incidentally was delivered 52 years ago on April 24. The doctrine holds that certain fundamental features of the Constitution cannot be amended by Parliament.

The basic structure doctrine has its underpinning in the doctrine of implied limitation, a doctrine evolved by courts around the world when interpreting a written constitution. It is now an entrenched part of constitutional jurisprudence. However, this is not to say that judges can go around waving the doctrine like knights-errant in pursuit of duels.

In the 52 years since the doctrine was evolved, the Supreme Court has used it to strike down a constitutional amendment on seven occasions. Six of these amendments have been partially struck down, all on the ground of denial of judicial review. The only amendment to be completely struck down was the one related to the National Judicial Appointments Commission.

In these circumstances, it is difficult to see how the Vice President’s allegations regarding the misuse of the basic structure doctrine are correct.

The use of Article 142

Article 142 gives the Supreme Court the power to “do complete justice”. A study by IIM-Ahmedabad found that Article 142 was used in 1579 cases between 1950 to 2023. The power was resorted to in 1150 civil cases, 292 criminal cases and 137 constitutional cases.

In the Tamil Nadu case, the Court has been criticised for using its Article 142 powers to grant assent to the bills. In my view, the criticism is unfounded. In using its powers to grant assent to the bills, the Court only took the proceedings to their logical conclusion. Ubi jus ibi remedium – where one’s right is violated, the law gives a remedy. That is one of the foundational principles of law. The Court’s exercise of its powers under Article 142 can be seen as an application of that principle.

The judgment in the Tamil Nadu Governor’s case is a reiteration of a well-known principle: No power vested in any authority, howsoever high, can be exercised in a manner inconsistent with constitutional principles. Further, no authority is beyond the powers of judicial review of the constitutional courts. The Supreme Court did not overreach its powers in the Tamil Nadu case. Rather, it exercised its power to the fullest extent required. As Chief Justice Marshall of the US Supreme Court once said, “Never seek to enlarge judicial power beyond its proper boundary, nor fear to carry it to the fullest extent that duty requires.”

(The writer is a Delhi-based lawyer)