Evolution of the SC as a Constitutional Court

Article 32 is “the very soul of the Constitution and the heart of it.”

B.R. Ambedkar

Five phases — restraint to constitutional court. P1 · Early years — Textual, positivist; Gopalan · Champakam; Shankari Prasad · Sajjan Singh → P2 · Assertion — Golak Nath 1967; Kesavananda 1973; ADM Jabalpur 1976 → P3 · Post-Emergency — Maneka 1978; S.P. Gupta 1981 · PIL → P4 · Appointments — Collegium 1998; NJAC struck 2015 → P5 · Post-2014 — executive strength; suo motu on life, food, health. Kesavananda Bharati (1973): Parliament can amend but cannot destroy the basic structure — C.J. Sikri’s elements: supremacy of the Constitution, republican-democratic government, secular character, separation of powers, federal structure. ADM Jabalpur (1976): upheld suspension of life and liberty during Emergency — the “darkest hour”.

Justice P.N. Bhagwati and Justice V.R. Krishna Iyer shaped activist jurisprudence (PIL areas: bonded labour, prisoners, environment, women, children, dignity, livelihood). P.B. Mehta describes the judiciary as politicised, self-perpetuating and uncertain; Upendra Baxi defends it for protecting the marginalised — the “Chemotherapy of carcinogenic politics of India”; Bhikhu Parekh calls India a case of judicial co-governance. Fali S. Nariman criticises basic structure — guardians of the Constitution may become guardians over the Constitution.

High Courts & Judicial Review

High Courts are part of the integrated judiciary — one per state, established by Parliament (not state constitutions, unlike the U.S.); judges appointed by the President in consultation with the CJI and Governor. Article 226 — writ jurisdiction for FRs and “other purposes”, broader than Article 32; plus appellate and original jurisdiction, superintendence, court of record, contempt, Art 229 appointments. The 42nd Amendment curtailed writ jurisdiction; the 44th restored it. Sir B.N. Rau‘s proposal for Governor appointment with State Council approval was rejected to protect independence.

Judicial review

The power of courts to test legislative and executive action against the Constitution — to uphold constitutional supremacy, protect FRs, maintain federal balance, prevent abuse of power. John Marshall established it in Marbury v. Madison. Basis: Arts 13 (void laws), 32 (SC remedy), 226 (HC writs), 131–136 (SC jurisdiction), 245–246 (competence), 137 (review), 141 (binding law).

“The law declared by Supreme Court shall be binding on all courts within the territory of India.”

Article 141

Landmark cases: Shankari Prasad (1951) and Sajjan Singh (1965) — Parliament could amend FRs; Golak Nath (1967) — FRs could not be abridged; Kesavananda Bharati (1973) — basic structure; Minerva Mills (1980) — limited amending power, FR–DPSP balance; L. Chandra Kumar — review under Arts 32 & 226 is basic structure; I.R. Coelho (2007) — Ninth Schedule laws open to review; K.S. Puttaswamy (2017) — privacy, proportionality; E.P. Royappa — arbitrariness violates equality; Shayara Bano — constitutional morality against instant triple talaq.

“It is a cardinal principle of our Constitution that no one, howsoever highly placed, can claim to be the sole judge of his own power.”

Minerva Mills v. Union of India

Efficacy — positive

• Protects rights · checks arbitrary power · strengthens federalism · expands Art 21 · voice to the marginalised · social justice · fills legislative gaps. Upendra Baxi — “chemotherapy” of carcinogenic politics. Granville Austin — review is the “cornerstone of the constitutional edifice.”

Criticism

• Overreach · democratic deficit · delay and pendency · doctrinal inconsistency · opaque appointments · policy interference · counter-majoritarian tension · lack of expertise · judicial populism. Balco Employees’ Union cautioned against reviewing complex economic policy. Rosalind Dixon‘s responsive review — intensity varies with democratic dysfunction.

UPSC 2015 · — — Efficacy of judicial review in India. (2015 marks not stated in source.)

Substantive Due Process · Activism vs Overreach

Substantive due process

Courts examine not only procedure but the substantive fairness of a law (American law uses it for unwritten liberties).

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Article 21 (original text)

Sir B.N. Rau warned that due process could let unelected judges block social and economic legislation. Development: A.K. Gopalan (narrow) → Maneka Gandhi (fair, just, reasonable — opened substantive review) → Selvi and Ramlila Maidan (language close to substantive due process); Rajbala v. Haryana (2015) rejected invalidation merely for arbitrariness/unwisdom; Shaikh Zahid Mukhtar (2016). Abhinav Chandrachud — protection of unenumerated rights reflects substantive-due-process thinking.

Judicial activism

• Active enforcement when the legislature/executive fails — via Arts 32, 226, 136, 141, 142, PIL, expanded Art 21, constitutional morality. Vishaka (1997, harassment) · M.C. Mehta (environment) · Unnikrishnan / Mohini Jain (education) · Olga Tellis (livelihood) · Bandhua Mukti Morcha · Prakash Singh · Common Cause (2018, dignity in death) · Puttaswamy · Navtej Singh Johar · ADR (2024, electoral bonds) · Bilkis Yakub Rasool (2024) · TN v. Governor of TN (2025). Support: Baxi, Krishna Iyer, Bhagwati, Faizan Mustafa, Nariman.

Judicial overreach

• Courts enter legislative/executive domains. Prakash Singh (police) · Godavarman (forests) · Aruna Shanbaug (euthanasia guidelines) · Vishaka (law-like guidelines) · 2G cancellation · Common Cause (NGO directions). Critique: unelected judges decide policy; separation of powers weakens; administrative confusion; lack of expertise. Markandey Katju · Aparna Chandra · R. Shunmugasundaram · Anshita Shrivastava — warns against a super-parliament and super-executive.

Fundamental Rights vs Directive Principles — Conflict to Balance

Different forms, a common constitutional purpose. Fundamental Rights are justiciable, negative limits on the state, protecting liberty and political democracy. DPSPs are non-justiciable positive goals, directing the state toward social and economic democracy. The relationship was settled through a long judicial arc.

From the primacy of rights to the balance of Parts III and IV. Champakam (1951) (FR prevail over DPSPs; led to the First Amendment and Art 15(4)) → Golaknath (1967) (Parliament cannot amend Fundamental Rights; led to 24th & 25th Amendments) → Kesavananda (1973) (Parliament may amend, but not the basic structure; balance of III & IV recognised) → Minerva Mills (1980) (Balance of III & IV is itself basic structure; absolute primacy to DPSPs invalid).

The Constitution is founded on the bedrock of the balance between Parts III and IV.

Chief Justice Y.V. Chandrachud, Minerva Mills

The courts later wove the two together: Olga Tellis read the right to livelihood into Article 21; Unni Krishnan read the right to education into it; I.R. Coelho subjected Ninth-Schedule laws to basic-structure review.

Article 31C and private property

Article 31C gives priority to laws implementing Article 39(b) (distribution of material resources for the common good) and 39(c) (preventing concentration of wealth), shielding them from challenge under Articles 14 and 19. Triggered by the Bank Nationalisation case (R.C. Cooper, 1970) and introduced by the 25th Amendment, it was upheld in Kesavananda (minus the bar on judicial inquiry); the 42nd Amendment‘s extension to all DPSPs was struck down in Minerva Mills. On 5 November 2024, a nine-judge bench held by 7:2 that Article 31C survives in its original form, and that not all private property is automatically a “material resource of the community”.

UPSC 2021

On reconciling Fundamental Rights with Directive Principles.

UPSC 2024 — On whether Directive Principles are more fundamental than Fundamental Rights.