Gopalan, Golaknath, & Raj Narain – Conundrum of Judicial Review vis-a-vis the Application of Basic Structure Doctrine to Ordinary Laws
Prabhu Gupta*
Volume 16 Issue 4 (2023)
The suprema lex of the Indian nation-State bestows the power of judicial review upon the courts to keep in check the powers of various organs of the State by providing for a separation of powers, and checks and balances-based governance system. The scope of judicial review has been a contentious issue ever since the Indian Constitution, 1950 (‘the Constitution’) came into effect and has been the subject matter of many a landmark judgement. Arguably, the most important judicial development in India has been the basic structure doctrine evolved by the Supreme Court in Kesavananda Bharati v. Union of India. Developed to check the amending powers of the Parliament, the doctrine has since evolved into an all-encompassing variant of judicial review being used to check a vast array of State action. This paper intends to discuss the nature and location of the basic structure doctrine in the Constitution and inquire whether it resides within the constitutional provisions while expanding the significance and development of the basic structure doctrine. The paper, while accepting the doctrine’s significance to check constitutional amendments, identifies the aspects of the expanding scope of judicial review and argues against its application to ordinary law on various grounds. Incorporating and analysing scholarly discourse and judicial pronouncements, the paper suggests alternate and legitimate ways to achieve goals that are sought to be attained through the application of the basic structure doctrine.