NATIONAL SEMINAR

on
“REVISITING THE THEORY OF BASIC
STRUCTURE ON COMPLETING 50 YEARS.”

TITLE : TUG-OF-WAR: Legislative versus Judiciary

BY: NIVEDITA SHARMA.
CONTENTS :
• Introduction.
• Constitution & Constitutionalism.
• The Basic Structure Doctrine.
• Landmark Cases.
• Judicial Supremacy.
• Legislative Dominancy.
• Legislature And Judiciary – Together.
• Conclusion.
INTRODUCTION
 CONSTITUTION & CONSTITUTIONALISM

o CONSTITUTION - A fundamental document outlining the fundamental principles, rules and

laws, that govern a state.
o CONSTITUTIONALISM - The adhering to the principles stated in the Constitution.
o Judiciary keeps a check that the government operates within the limits set by the constitution
and the rights of the citizens are not infringed.
o Balance between judiciary and legislature is important to maintain the Constitutional
Supremacy.
o Both the organs maintain the relationship of checks and balances.
BASIC STRUCTURE DOCTRINE
• No where mentioned in the Constitution.
• First emerged in the Supreme Court of India through Kesavananda Bharati v. State
of Kerala, 1973.
• It was held that, although the Indian Constitution doesn't limit the powers of the
Legislature to amend it, there are certain basic features that cannot be amended.
• The exact nature of the basic structure has not been defined precisely, but through
the landmark judgements - federalism, the separation of powers, the rule of law,
and Constitution Supremacy are protected under the Basic Structure Doctrine.
• Started in India, later on adopted by countries like Nepal, Pakistan and
Bangladesh.
 LANDMARK CASES:
o Indira Nehru Gandhi v. Raj Narain (1975) – 39th Amendment Act(Elections of the
Prime Minister were immunized from judicial scrutiny) was struck down.
o Minerva Mills Ltd. v. UOI (1980) – Certain provisions of 42nd Amendment Act
(unlimited powers to the Parliament to amend the constitution) was struck down.
o S.R. Bommai v. UOI (1994) – Federalism is part of the basic structure and
guidelines the President and Governor for Article 356.
o L. Chandra Kumar v. UOI (1997) – Judicial review is part of the basic structure
doctrine.
 JUDICIAL SUPREMACY
• In 2018, CJI and 4 Judges held press conference for interference of executive in the
appointment of judges.
• Decriminalization of Homosexuality in 2018 (Section 377), Navtej Singh Johar v. UOI, (2018).
• Disqualification of Lawmakers in 2019 under anti-defection law.
• Contempt Of Court proceedings initiated against political figures in 2020 for disobeying and
criticizing the Court.
• Colourable Legislation – In K. C. Gajapati Narayan Deo v. State Of Orissa, it was held that the
Legislature cannot pass such laws which circumvent the Constitution of India.
 LEGISLATIVE DOMINANCY:
• CAA - was challenged in several courts but legislative was firm on its
decision and quoted that the Judiciary has no authority to review a law
which is passed by the supreme legislature authority.
• FARMERS’ LAWS – The Supreme Court held a stay on their
implementation and asked the Government to hear the concerns of the
protesters. Latter stated that the former has no right to intervene when the
laws are passed by the Parliament.
 LEGISLATURE AND JUDICIARY – TOGETHER

o ADHAAR Case – Government made it compulsory, however, people

protested it by stating it as against Right To Privacy. The Supreme Court
upheld its validity along with some restrictions to protect citizens’ privacy.
o Kathua Rape Case – The Criminal Law Amendment Act 2018 was
introduced which was supported by Judiciary and Citizens as well.
o RTI Amendment Act 2019 – Certain Sectors have been prevented from
information access. Judiciary did support but maintain a balance to
provide transparency and accountability from the Government.
CONCLUSION :

• Check on ARBRITRARINESS.
• Promotes ACCOUNTABLITY and TRANSPARANCY in the LEGISLATIVE
process.
• RIGHTS and DUTIES are well protected.
• CONFLICTS nit resolved, however, judicial review is there to keep a check on the
AMENDING powers of the LEGISLATURE.
• JUDICIARY PROTECTING the Constitution’s stability and integrity and standing
firm on the INVIOLABILITY of the BASIC STRUCTURE DOCTRINE.