CDS (II) 2023 General Knowledge · Question 89 of 120

Correct — A, Judicial Review. Subhash Sharma v. Union of India came out of petitions about the state of the higher judiciary — vacancies left unfilled and the manner in which judges were appointed and transferred. The Supreme Court used the occasion to state the constitutional stakes plainly: 'Judicial Review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional policy.' It went on that 'an independent non-political judiciary is crucial to the sustenance of our chosen political system', and held that once the sanctioned strength of a court is fixed it is the obligation of the Union to keep that strength filled, adding that there was 'no justification for the sluggish move in such an important matter'. The reasoning is that judicial review can only mean something if there are judges to exercise it, which is what links the vacancy question to the basic feature. The case then referred the correctness of the earlier judges' case to a larger bench, which produced the Second Judges Case of 1993 and the collegium.

• (b)Rule of Law — Rule of law is undoubtedly a basic feature, but the phrase the Court used in this judgment was judicial review. Rule of law is associated with Indira Nehru Gandhi v. Raj Narain and the Kesavananda line rather than with this case.
• (c)Free and fair elections — That basic feature comes from the election cases — Indira Nehru Gandhi v. Raj Narain and later Kihoto Hollohan — not from a judgment about vacancies in the higher judiciary.
• (d)Fundamental Rights — Too broad, and not what this judgment was about. The petitions concerned the working of the judiciary as an institution, and the feature the Court named was judicial review.

The basic structure doctrine, from Kesavananda Bharati (1973), holds that Parliament's amending power under Article 368 cannot destroy the Constitution's essential features. The Constitution nowhere lists those features; they have been identified case by case, and judicial review is among the most frequently named. Judicial review itself is the power of the Supreme Court and the High Courts, under Articles 13, 32, 226 and 227, to test laws and executive action against the Constitution and to strike down what fails.

The case names in this part of the syllabus are best held with one anchor phrase each, because the exam asks which case said what. Kesavananda gives the doctrine itself; Indira Nehru Gandhi v. Raj Narain adds free and fair elections and rule of law; Minerva Mills adds the balance between fundamental rights and directive principles and limited amending power; Subhash Sharma adds judicial review together with the independence of the judiciary. Subhash Sharma also matters institutionally: it is the reference that led to the Second Judges Case in 1993, from which the collegium system for appointing judges emerged, and that system was reaffirmed when the Court struck down the National Judicial Appointments Commission in 2015.

• Subhash Sharma v. Union of India, reported at 1991 AIR 631, arose from petitions about vacancies and appointments in the higher judiciary.
• The Court stated that judicial review is part of the basic constitutional structure and one of the basic features of Indian constitutional policy.
• It held that once the sanctioned judge strength is fixed, the Union is obliged to maintain it, criticising the delay in filling vacancies.
• It also said that an independent, non-political judiciary is crucial to the political system chosen by the Constitution.
• The case referred the correctness of the First Judges Case to a larger bench, leading to the Second Judges Case of 1993 and the collegium.

• Assigning rule of law or free and fair elections to this case; each has its own leading judgment.
• Believing the Constitution lists its basic features; it does not, and the list has grown through judgments.
• Confusing the First Judges Case with Subhash Sharma, which referred it for reconsideration.

As a case-to-principle matching item, or as a statements question on what the basic structure includes.

• practice — not a real PYQ

  The doctrine of basic structure of the Constitution of India was laid down in which case?

  • (a)Golaknath v. State of Punjab
  • (b)Kesavananda Bharati v. State of Kerala
  • (c)A. K. Gopalan v. State of Madras
  • (d)Maneka Gandhi v. Union of India

  Answer(b) Kesavananda Bharati v. State of Kerala (1973) — which held that Parliament cannot amend away the Constitution's essential features.

• practice — not a real PYQ

  Judicial review in India is best described as the power of the judiciary to

  • (a)question the wisdom of laws made by the legislature
  • (b)examine the constitutionality of laws and executive action
  • (c)vet all bills before the President gives assent
  • (d)reopen its own earlier judgments in similar cases

  Answer(b) examine the constitutionality of laws and executive action — and to strike down what conflicts with the Constitution.