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Governance, Ethics, Law and International Relations — Group-I · Chapter 5

Judicial Review, PIL and Federal Issues

What to remember

  • Judicial review is the power of courts to test laws and executive acts against the Constitution; the Basic Structure doctrine (Kesavananda Bharati, 1973) limits even Parliament's power to amend.
  • PIL widened access to justice by relaxing locus standi; it brought great gains but also the risk of judicial overreach.
  • Centre-State balance rests on the Seventh Schedule, Governor's role, Article 356, Inter-State Council and Finance Commission; Sarkaria (1988) and Punchhi (2010) are the key commissions.

Judicial review

The Constitution does not use the words "judicial review", but several Articles give the power. Article 13 declares void any law that violates Fundamental Rights. Article 32 lets a person go directly to the Supreme Court, and Article 226 gives High Courts a wider writ power (for Fundamental Rights and for "any other purpose"). Article 131 gives the Supreme Court original jurisdiction in Centre-State disputes. Article 143 allows the President to seek an advisory opinion. Article 136 gives special leave to appeal. Article 372 continues pre-constitution laws.

The idea began in the American case Marbury v. Madison (1803). In India, judicial review covers three areas: review of legislative acts, of executive and administrative acts, and of judicial decisions. Courts can also review Constitutional Amendments under the Basic Structure doctrine.

CaseMain rule
Golaknath, 1967Parliament cannot amend Fundamental Rights (later overruled)
Kesavananda Bharati, 1973Parliament can amend, but cannot destroy the basic structure
Indira Gandhi v. Raj Narain, 1975Free and fair elections are part of basic structure
Minerva Mills, 1980Balance of Fundamental Rights and Directive Principles is basic structure; limited power to amend is itself basic
Maneka Gandhi, 1978"Procedure established by law" must be fair, just and reasonable
Indra Sawhney, 1992Upheld OBC reservation; set the 50 per cent ceiling as a general rule; creamy layer excluded
S.R. Bommai, 1994Presidential proclamation under Article 356 is open to judicial review; secularism is basic structure
I.R. Coelho, 2007Laws placed in the Ninth Schedule after April 1973 can be reviewed
Puttaswamy, 2017Right to privacy is a Fundamental Right under Article 21
Fourth Judges Case, 2015NJAC and the 99th Amendment struck down; collegium continues

The ADM Jabalpur case (1976) held that Article 21 could be suspended during Emergency. The Puttaswamy judgment rejected this view.

Judicial activism, restraint and overreach

  • Activism: courts take a creative and active role to protect rights and fill gaps. Examples are the expanded meaning of Article 21 and guidelines in Vishaka.
  • Restraint: courts leave policy to the legislature and executive.
  • Overreach: courts enter the field of legislature or executive, which weakens separation of powers.

Critics warn that courts lack expertise on policy and cannot be held accountable like elected bodies. Supporters say activism arose when other organs failed to act.

Public Interest Litigation (PIL)

PIL means court action for a public cause, brought by any public-spirited person and not only by the victim. India's PIL grew in the late 1970s and 1980s, led by Justices P.N. Bhagwati and V.R. Krishna Iyer. The old rule of locus standi (only the person harmed can sue) was relaxed.

  • Hussainara Khatoon (1979): undertrial prisoners; right to speedy trial under Article 21.
  • S.P. Gupta (1981): widened locus standi; also called the First Judges Case.
  • Courts accept letters and postcards as petitions (epistolary jurisdiction).
  • Areas include environment, bonded labour, prison conditions, sexual harassment and public health.

Limits: the Supreme Court has warned against "publicity interest" and "private interest" litigation. Courts may impose costs on frivolous petitions. PIL should not be used to run the administration.

Writs: habeas corpus (produce the detained person), mandamus (command to do a public duty), prohibition (stops a lower court exceeding its power), certiorari (quashes an order of a lower body), quo warranto (asks by what authority a person holds a public office).

Governor and federal issues

The Governor is appointed by the President (Article 155) and holds office during the President's pleasure (Article 156). Normal term is five years. Article 163 says the Governor acts on the aid and advice of the Council of Ministers, except in matters where the Constitution gives discretion. Shamsher Singh (1974) confirmed that the Governor is a constitutional head.

PowerArticleNote
Assent to Bills, reserve for President200, 201Governor can withhold, return or reserve
Ordinance-making213When the Assembly is not in session
Invite the leader to form Government164Discretion in a hung House
Report of failure of constitutional machinery356Basis for President's Rule

Controversies: use of the Governor to dismiss State governments, delays in giving assent, choice of the Chief Minister in a hung House. Cases: Rameshwar Prasad (2006) held the dissolution of the Bihar Assembly was unconstitutional; Nabam Rebia (2016) limited the Governor's discretion in summoning the Assembly.

Sarkaria Commission (appointed 1983, report 1988) suggested that the Governor should be an eminent person from outside the State, not active in local politics recently, that the Article 356 should be a last resort, and that the Inter-State Council be set up. The Punchhi Commission (appointed 2007, report 2010) also dealt with Centre-State relations; it suggested a fixed tenure for Governors and removal only through a resolution of the State Legislature, among other measures.

Centre-State legislative and financial relations

The Seventh Schedule has three Lists: Union, State and Concurrent. The Union List is the largest. Residuary powers belong to Parliament (Article 248). The 42nd Amendment (1976) moved education, forests, wild animals and birds, weights and measures, and administration of justice from the State List to the Concurrent List.

Parliament can legislate on a State subject: with a Rajya Sabha resolution passed by two-thirds (Article 249), during Emergency (Article 250), by consent of States (Article 252) and to implement international agreements (Article 253). Under Article 254, if a Union law and State law on a Concurrent subject conflict, the Union law prevails, unless the State law has the President's assent.

Institutions: the Inter-State Council (Article 263; set up in 1990), Finance Commission (Article 280), GST Council (Article 279A, added by the 101st Amendment, 2016), and Zonal Councils (created by the States Reorganisation Act, 1956).

Andhra Pradesh has a special constitutional feature: Article 371D (inserted in 1973) provides equal opportunities in public employment and education for people of the different parts of the State, through a Presidential Order. After the Andhra Pradesh Reorganisation Act, 2014, matters such as sharing of assets and the status of the State's special assistance remain active federal issues.

Cooperative federalism and recent trends

India is called "quasi-federal": it has a strong Centre but also a written Constitution, division of powers and an independent judiciary. Bommai (1994) said that federalism is part of the basic structure. Over time, the idea has moved from a strong-Centre model to cooperative federalism, where the Union and States work together through bodies such as the GST Council, in which both sit and decide by weighted voting. Competitive federalism means States compete for investment and better governance.

Common issues are: sharing of tax revenue through the Finance Commission, use of cesses and surcharges that are outside the divisible pool, Centrally sponsored schemes in State subjects, role of the Governor in Universities and in giving assent, use of central agencies in States, and demands for special status or special assistance. A reader should be able to give both sides of each issue in a Mains answer: the Centre's argument of national unity and uniform standards, and the States' argument of local needs and autonomy. Courts act as the umpire of the federal system, under Article 131 and through writ petitions.

Exam traps

  • Article 32 is for Fundamental Rights only; Article 226 is wider.
  • Golaknath was overruled; Kesavananda created the basic structure doctrine.
  • Governor acts on aid and advice, with limited discretion.
  • Sarkaria (1988) and Punchhi (2010) are different commissions.
  • The Inter-State Council is under Article 263; the GST Council under Article 279A.
  • Education moved to the Concurrent List by the 42nd Amendment.
  • Quo warranto tests the right to hold office; certiorari quashes an order.
  • Bommai made Article 356 reviewable; it did not abolish Article 356.

One-liners

  • 1. Marbury v. Madison (1803) is the origin of judicial review.
  • 2. Basic structure comes from Kesavananda Bharati (1973).
  • 3. Maneka Gandhi widened Article 21.
  • 4. Indra Sawhney set the 50 per cent ceiling as a general rule.
  • 5. Puttaswamy declared privacy a Fundamental Right.
  • 6. Hussainara Khatoon is an early PIL on undertrials.
  • 7. Article 155 provides for appointment of Governor.
  • 8. Article 356 deals with President's Rule.
  • 9. Article 263 provides for the Inter-State Council.
  • 10. Article 280 provides for the Finance Commission.
  • 11. Article 248 gives residuary powers to Parliament.
  • 12. Article 371D is a special provision for Andhra Pradesh.

Practice questions

  1. The doctrine of basic structure was laid down in

    1. Kesavananda Bharati case
    2. Minerva Mills case
    3. Golaknath case
    4. Maneka Gandhi case
    Answer

    A. Kesavananda Bharati case

    Kesavananda Bharati (1973) held Parliament cannot destroy the basic structure.

  2. Which Article declares laws that violate Fundamental Rights void?

    1. Article 32
    2. Article 13
    3. Article 12
    4. Article 14
    Answer

    B. Article 13

    Article 13 is the base of judicial review of laws.

  3. A person can approach the Supreme Court directly for Fundamental Rights under

    1. Article 136
    2. Article 131
    3. Article 226
    4. Article 32
    Answer

    D. Article 32

    Article 32 is itself a Fundamental Right.

  4. The writ of habeas corpus is issued to

    1. Command a public official to act
    2. Produce a detained person before the court
    3. Quash an order of a lower court
    4. Question a person's right to hold office
    Answer

    B. Produce a detained person before the court

    Habeas corpus means "to have the body".

  5. The writ that asks "by what authority" a person holds a public office is

    1. Quo warranto
    2. Mandamus
    3. Certiorari
    4. Prohibition
    Answer

    A. Quo warranto

    Quo warranto tests the legal right to hold a public office.

  6. The Governor of a State is appointed by

    1. The President
    2. The Prime Minister
    3. The Chief Minister
    4. The Chief Justice of the High Court
    Answer

    A. The President

    Article 155 provides for appointment by the President.

  7. Which case held that Article 356 proclamations are open to judicial review?

    1. Kesavananda Bharati case
    2. S.R. Bommai case
    3. Minerva Mills case
    4. Golaknath case
    Answer

    B. S.R. Bommai case

    Bommai (1994) allowed courts to review a Presidential Proclamation.

  8. The Sarkaria Commission was appointed in

    1. 1969
    2. 2007
    3. 1990
    4. 1983
    Answer

    D. 1983

    It was set up in 1983 and reported in 1988.

  9. The Punchhi Commission examined

    1. Centre-State relations
    2. Electoral reforms
    3. Police reforms
    4. Judicial appointments
    Answer

    A. Centre-State relations

    It reviewed Centre-State relations and reported in 2010.

  10. Which Article provides for the Inter-State Council?

    1. Article 280
    2. Article 263
    3. Article 279A
    4. Article 248
    Answer

    B. Article 263

    Article 263 allows the President to set up the Council.

  11. The GST Council is provided for in

    1. Article 263
    2. Article 280
    3. Article 324
    4. Article 279A
    Answer

    D. Article 279A

    Article 279A was added by the 101st Amendment.

  12. Residuary powers of legislation belong to

    1. The Governor
    2. State Legislatures
    3. Parliament
    4. The Inter-State Council
    Answer

    C. Parliament

    Article 248 gives residuary powers to Parliament.

  13. Which subject was moved from the State List to the Concurrent List by the 42nd Amendment?

    1. Education
    2. Police
    3. Agriculture
    4. Public health
    Answer

    A. Education

    Education, forests and some other subjects were shifted in 1976.

  14. Special provisions on equal opportunity in public employment and education in Andhra Pradesh are found in

    1. Article 371A
    2. Article 371J
    3. Article 371D
    4. Article 370
    Answer

    C. Article 371D

    Article 371D was inserted in 1973.

  15. The first major PIL on undertrial prisoners' speedy trial was

    1. Bommai case
    2. Hussainara Khatoon case
    3. Vishaka case
    4. Maneka Gandhi case
    Answer

    B. Hussainara Khatoon case

    Hussainara Khatoon (1979) recognised speedy trial as part of Article 21.

  16. The Fourth Judges Case struck down

    1. Article 356
    2. The 42nd Amendment
    3. The collegium system
    4. The NJAC and the 99th Amendment
    Answer

    D. The NJAC and the 99th Amendment

    The Court struck down the NJAC in 2015.

  17. Right to privacy was declared a Fundamental Right in

    1. Puttaswamy case
    2. ADM Jabalpur case
    3. Shreya Singhal case
    4. A.K. Gopalan case
    Answer

    A. Puttaswamy case

    Puttaswamy (2017) placed privacy under Article 21.

  18. In the Maneka Gandhi case, the Supreme Court held that the procedure under Article 21 must be

    1. Written in a statute only
    2. Fair, just and reasonable
    3. Approved by the President
    4. Decided by the Governor
    Answer

    B. Fair, just and reasonable

    It linked Articles 14, 19 and 21.

  19. A letter from a prisoner is treated as a writ petition by the court. This is called

    1. Original jurisdiction
    2. Advisory jurisdiction
    3. Epistolary jurisdiction
    4. Judicial restraint
    Answer

    C. Epistolary jurisdiction

    Epistolary jurisdiction allows courts to act on letters in public interest.

  20. When a court makes rules that properly belong to the legislature, critics call it

    1. Judicial review
    2. Judicial precedent
    3. Judicial restraint
    4. Judicial overreach
    Answer

    D. Judicial overreach

    It weakens separation of powers.

  21. A Governor delays giving assent to a Bill indefinitely. Which Article gives the Governor power over assent?

    1. Article 200
    2. Article 213
    3. Article 164
    4. Article 356
    Answer

    A. Article 200

    Article 200 allows assent, withholding, return or reservation for the President.

  22. The Governor can issue an ordinance when

    1. The High Court permits
    2. The Legislature is not in session
    3. The Council of Ministers resigns
    4. Parliament directs
    Answer

    B. The Legislature is not in session

    Article 213 applies when the Legislature is not in session.

  23. Parliament can legislate on a State List subject in national interest if

    1. The Governor recommends
    2. The Lok Sabha passes a simple resolution
    3. Rajya Sabha passes a resolution by two-thirds majority
    4. The President decides alone
    Answer

    C. Rajya Sabha passes a resolution by two-thirds majority

    This is the rule in Article 249.

  24. A Union law and State law on a Concurrent subject conflict. Which prevails?

    1. The State law always
    2. The law passed earlier
    3. The law decided by the Governor
    4. The Union law, unless the State law has the President's assent
    Answer

    D. The Union law, unless the State law has the President's assent

    Article 254 resolves the repugnancy.

  25. A person files a petition about a public cause though he is not personally affected. This is possible because of

    1. Relaxed locus standi in PIL
    2. Doctrine of eclipse
    3. Article 143
    4. Article 249
    Answer

    A. Relaxed locus standi in PIL

    PIL relaxed the rule that only the victim can sue.

  26. Which statement is correct about the Governor?

    1. He acts on his own discretion in all matters
    2. He acts on aid and advice of the Council of Ministers except where discretion is allowed
    3. He cannot be removed by the President
    4. He is elected by the State Assembly
    Answer

    B. He acts on aid and advice of the Council of Ministers except where discretion is allowed

    Article 163 and Shamsher Singh (1974).

  27. Consider the statements. 1. Article 32 is available for any legal right. 2. Article 226 can be used for Fundamental Rights and other legal rights. Which is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    B. 2 only

    Article 32 is for Fundamental Rights only.

  28. Consider the statements. 1. Golaknath was overruled by Kesavananda Bharati. 2. Kesavananda Bharati held that Parliament cannot amend the Constitution at all. Which is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    A. 1 only

    Parliament can amend, but not destroy the basic structure.

  29. Consider the statements. 1. Sarkaria Commission reported in 1988. 2. Punchhi Commission reported in 2010. Which is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    C. Both 1 and 2

    Both dates are right.

  30. Consider the statements. 1. Bommai case made Article 356 non-reviewable. 2. Bommai case treated secularism as part of the basic structure. Which is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    B. 2 only

    Bommai made Article 356 reviewable.

  31. Consider the statements. 1. The Governor holds office during the pleasure of the President. 2. The Governor's normal term is five years. Which is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    C. Both 1 and 2

    Articles 156 provides both.

  32. Consider the statements. 1. The Inter-State Council was set up in 1990. 2. It is provided for in Article 263. Which is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    C. Both 1 and 2

    Both are correct.

  33. Consider the statements about PIL. 1. It was led in India by Justices Bhagwati and Krishna Iyer. 2. Courts cannot punish frivolous PIL petitioners. Which is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    A. 1 only

    Courts can impose costs on frivolous petitions.

  34. Consider the statements. 1. Laws in the Ninth Schedule after April 1973 can be reviewed. 2. This was held in I.R. Coelho case. Which is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    C. Both 1 and 2

    Coelho (2007) allowed review on basic structure grounds.

  35. Match the case with its holding: Indra Sawhney

    1. Held Governor must act on advice
    2. Declared privacy a right
    3. Struck down the NJAC
    4. Upheld OBC reservation with a 50 per cent general ceiling
    Answer

    D. Upheld OBC reservation with a 50 per cent general ceiling

    Indra Sawhney (1992) is the Mandal reservation case.

  36. Match the case with its subject: Rameshwar Prasad

    1. Right to privacy
    2. Basic structure
    3. NJAC
    4. Dissolution of the Bihar Assembly
    Answer

    D. Dissolution of the Bihar Assembly

    The Court held the dissolution was unconstitutional (2006).

  37. Match the Article with its subject: Article 143

    1. Original jurisdiction in Centre-State disputes
    2. Writs by High Courts
    3. Special leave to appeal
    4. Advisory jurisdiction of the Supreme Court
    Answer

    D. Advisory jurisdiction of the Supreme Court

    Article 143 allows the President to seek advice.

  38. Match the Article with its subject: Article 131

    1. Governor's ordinance
    2. Advisory opinion
    3. Finance Commission
    4. Original jurisdiction of the Supreme Court
    Answer

    D. Original jurisdiction of the Supreme Court

    Article 131 deals with disputes between governments.

  39. Match the writ with its use: Certiorari

    1. Commands performance of a public duty
    2. Quashes an order of a lower authority
    3. Produces a detained person
    4. Tests right to office
    Answer

    B. Quashes an order of a lower authority

    Certiorari quashes orders made without jurisdiction.

  40. Which Article gives the Finance Commission its constitutional basis?

    1. Article 280
    2. Article 248
    3. Article 263
    4. Article 356
    Answer

    A. Article 280

    Article 280 provides for the Finance Commission every five years.

  41. The Zonal Councils were set up under

    1. The States Reorganisation Act, 1956
    2. The 101st Amendment
    3. Article 263
    4. The 42nd Amendment
    Answer

    A. The States Reorganisation Act, 1956

    The 1956 Act created the five Zonal Councils.

  42. Which statement best describes judicial restraint?

    1. Courts appoint ministers
    2. Courts make laws
    3. Courts avoid interfering in matters of policy
    4. Courts abolish Fundamental Rights
    Answer

    C. Courts avoid interfering in matters of policy

    Restraint means leaving policy choices to the elected organs.

  43. Which case is often called the First Judges Case, which widened locus standi in PIL?

    1. Puttaswamy case
    2. S.P. Gupta case
    3. Golaknath case
    4. Minerva Mills case
    Answer

    B. S.P. Gupta case

    S.P. Gupta (1981) widened standing and dealt with judges' appointments.

  44. Under Article 253, Parliament can make laws on State subjects to

    1. Create new States
    2. Conduct elections
    3. Impose President's rule
    4. Implement international treaties
    Answer

    D. Implement international treaties

    Article 253 gives power to implement international agreements.

  45. Which of these is NOT a ground on which Parliament can make laws on a State List subject?

    1. A recommendation by the Governor alone
    2. Proclamation of National Emergency
    3. Consent of two or more States
    4. Rajya Sabha resolution by two-thirds majority
    Answer

    A. A recommendation by the Governor alone

    Articles 249, 250 and 252 allow it; a Governor's recommendation does not.

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