Judicial Overreach and Basic Structure-II


This article argues that juridical orders shall be subjected to a Basic Structure Review. Part II extends the arguments given to subject ordinary laws and executive action to a Basic Structure Review to judicial orders.

Basic Structure and Judicial Decisions

The logic discussed in Part I of this essay can be summarized as: power conferring provisions under our Constitution come with implied limitations because the Constitution would not confer a power so wide so as to run the risk of the destruction of its own identity. Hence, every exercise of power must be in conformity with the basic structure. As a matter of principle, I would argue in this piece that the same logic should apply to the exercise of judicial power.

Argument on principle

The Court in State of Rajasthan v. Union of India observed, “So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, can certainly be decided by the Court. Indeed, it would be its constitutional obligation to do so…” In a similar vein, Justice Chandrachud in his dissenting opinion in Aadhaar invoked, inter alia, federalism (its important offshoot being the bicameral nature of the Indian Parliament) as one of the basic features of the Constitution to hold that the authority of the Speaker under Article 110 is not absolute and can be subjected to judicial review. The justification was that the Court is the sentinel to ensure that no authority transgresses the constitutional bounds.

Basic structure judicial review is a mere concomitant of the primary principle that all authorities are created by the Constitution and hence, cannot act against the principles and powers provided in the Constitution. Or, as Professor Upendra Baxi writes in A Pilgrim’s Progress: The Basic Structure Revisited that “the grundnorm of the written Constitution of India” is: “everyone ought to act with full deference to the constitutional limits of one’s appointed power”.  Even the guardian of the Constitution is not exempted from the application of the primary principle. In fact, given that the guardian has the responsibility/authority to ensure that the other organs of the State act in consonance with the basic features, it has a heightened moral obligation to follow such basic principles in its own exercise of authority. Sudhir Krishnaswamy uses the concept of ‘shared sovereignty’ to argue for the moral legitimacy of the basic structure doctrine. He observes, “An adequate understanding of basic structure review would require a revised account of sovereignty which is institutionally dispersed and envisages a legal system with multiple unranked sources of power.” As per this model, the judiciary is one of the loci of sovereign power. This shores up the argument that just like other loci of sovereign power have been made accountable under the basic structure doctrine, so should the judiciary be.

Argument on practice

It seems reasonable to subject legislative and executive actions to the basic structure review but not judicial action. In a traditional sense, legislative and executive actions have a wider and more potent impact on the public under any constitutional practice. This is because of the belief that a judicial decision merely decides the dispute between the parties involved. On the other hand, there is a large pool of stakeholders involved in legislative and executive actions. Moreover, the Court merely has to apply the law to the facts of the case, while the legislature and the executive have a wider power as they enact laws and policies. Even if one considers the writ jurisdiction of the Constitutional Courts, it is merely a negative action and not a positive one (traditionally speaking). That is to say, a constitutional court merely restricts the powers of an authority in consonance with the Constitution and does not take positive action itself.

In The Basic Structure Doctrine Revisited, Gautam Bhatia writes, “Unlike the legislature and the executive, the judiciary cannot take any positive action, it holds neither the sword, nor the purse strings, and the maximum impact it can have upon the society is negligible, as compared to the other wings.” However, this assertion belies the practice of the Indian Supreme Court. It has time and again overstepped the traditional boundaries of judicial power. It has encroached on the legislative (a recent instance being Ritesh Sinha) and the executive/administrative (for instance, the NRC exercise in Assam) domains. Ergo, various orders of the Supreme Court have been in the form of positive action and have the potential of not only violating the rights of the people but also disconcerting the constitutional composure. This furthers the argument that such orders should be subjected to the basic structure review. It is pertinent to note that the logic deployed by the majority in Naresh Mirajkar, whereby it was held that a judicial order cannot violate fundamental rights, will not affect the argument made here since the Court’s conception of a judicial order in Naresh Mirajkar was the traditional one. My argument focuses on the judicial orders which cannot be categorized as judicial in the traditional sense.    


The argument made here is not merely an academic exercise. In my opinion, it is of practical significance in constitutional litigation. The significance is twofold: Firstly, the very exercise of judicial authority in certain cases (which in actuality is an encroachment on legislative or executive domain) will be tested on the anvil of basic structure. Secondly, the productof such an exercise will be tested for violation of the basic features. Take for instance Ritesh Sinha in which the Court authorized the taking of voice samples of the accused during the course of criminal investigation despite there being no provision in the Code of Criminal Procedure, 1973. The very exercise of power in such a case (under Article 142) violates the principle of separation of powers (which is one of the basic features) since enacting a law for criminal investigation and its procedure lies purely in the legislative domain. Moreover, the product of this exercise i.e. taking of voice samples of the accused might be a possible infringement of the Part III rights. Now, this judicial order cannot be tested under Article 13 compliance model. But, violation of fundamental rights can surely be tested as per the basic structure doctrine since I.R. Coelho held that certain fundamental rights like Articles 14, 19 & 21 (or at least the core values underlying them) are part of the basic structure. In Coelho, the categorization of certain fundamental rights as the basic features was necessitated because of the Ninth Schedule laws as they are immune from Article 13 compliance model. However, if the main premise presented in this piece is accepted, then the Coelho test can be extended to judicial orders.

Needless to say, given the current framework, the Court will itself have to review its decisions as per the doctrine of Basic Structure by using the existing mechanism of review of judgments. Hence, it might seem to many as a futile exercise. However, I believe that such a tool would compel the Court to give a stronger justification for its exercise of extra-judicial power and it certainly cannot refuse to engage on such terms. Moreover, it would bind the Court to apply the same principles to its orders as it has applied (or will apply) to legislations and executive actions under the basic structure review.      

Written by
Sholab Arora
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