What are the powers of Judicial Review of the Supreme Court?

Though the phase Judicial Review does not find place in the text of the constitution yet the Supreme Court of India has the power of Judicial Review. In the exercise of power the Supreme Court can determine the constitutionality or otherwise of all legislation passed in India by the Parliament States Legislatures.

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Our constitution has adopted a synthesis of the British Principles of Parliamentary Sovereignty and the American system of Judicial Supremacy. The notion that the American Doctrine of judicial review has a limited connotation in the Indian context does not seem to be correct because of two reasons. First, like the Legislature and the executive, the judiciary has also been given its due place of honor to help the three things work in close co-operation. Secondly, the Supreme Court also the interpreter and guardian of the constitution how can it then afford to ignore the socio-economic and political trends of the times and the process check the contradictory forces work.


According to our constitution, Parliament is supreme in enacting laws and amending the constitution but the Supreme Court is supreme in deciding whether the laws enacted and the amendments made by Parliament are within the ambit of the constitution. Despite these specified limitation the struggle between the Supreme Court and the Executive began soon after the commencement of the constitution in 1950. The struggle continued in a series of cases about the meaning of compensation. Basically the struggle was carried on in terms of the clams to supremacy of Judicial Review vs. Parliamentary Sovereignty in interpreting and defining the constitution. One of the principal grounds on which the struggle was fought was the meaning of limitation on the right to property.

The issue was seriously started for the first time in the famous Golaknath case decided in 1967. It held that Parliament had no power to amend Fundamental Rights. The Govt. responded through the 24th amendment to the constitution in 1971 by adding clause 4 to Art 13 which sought to give blanket powers to Parliament to amend the constitution including the Fundamental Rights. This was repulsed by the Supreme Court in the famous Keshab Anand Bharati Case. While agreeing that Fundamental Rights were subject to amendment the Supreme Court held in the Keshab Anand Bharati Case1973 that the constitution had a basic stricture. Parliamentary amendment that attacked the constitution’s basic structure would be held unconstitutional.

Another stronger attempt was made by the Government in 1976 through the 42nd Amendment. It not only gave limitless power of amendment to parliament but also put it beyond the reach of the judiciary. Section 4 of this amendment gave primacy to Directive Principles over Fundamental Rights. In the Minerva Mill case AIR 1980 the Supreme Court has reiterated that Parliament does not have an unfettered power of amendment. It can amend the constitution within the limits of its basic structure. The Fundamental Rights thus continue to have Precedence over the Directive Principles.

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