Highlight any two constitutional issues between the Parliament and the Judiciary during the 1970s.

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Q. Highlight any two constitutional issues between the Parliament and the Judiciary during the 1970s.

CBSECBSE Class XII Board 2019Subjective· 2mImportance★★★★★

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Concept understanding — Judicial Review Limits

Judicial Review Limits – From Intuition to Precision

Think of a referee in a football match. The referee can blow the whistle, show yellow cards, and even send players off. But the referee cannot change the rules of the game mid-match, cannot decide which team should win based on personal preference, and cannot overrule the basic structure of the sport itself. The referee's power is real, but it has boundaries.

Judicial review works the same way. It is the power of courts (especially the Supreme Court and High Courts in India) to examine laws and executive actions and strike them down if they violate the Constitution. But this power is not absolute. The limits on judicial review are the boundaries that prevent courts from becoming a super-legislature or a super-executive.

The Core Intuition

The Constitution creates three organs: the legislature (makes laws), the executive (implements laws), and the judiciary (interprets laws and settles disputes). Each has its own domain. Judicial review is the judiciary's tool to ensure the other two organs stay within constitutional bounds. But if the judiciary used this tool without any restraint, it would upset the balance of power.

The limits on judicial review answer one question: How far can a court go in telling the legislature or executive that they are wrong?

The Precise Statement

Important

Judicial review limits are the constitutional, procedural, and self-imposed boundaries within which courts exercise their power to examine the validity of laws and executive actions. These limits ensure that judicial review strengthens constitutional democracy without replacing the role of elected bodies.

The Major Limits Explained

1. The Doctrine of Separation of Powers

Courts cannot legislate. They can strike down a law, but they cannot write a new one in its place. If Parliament passes a law that violates fundamental rights, the Supreme Court can declare it void — but the Court cannot draft a replacement law. That job belongs to Parliament.

Similarly, courts cannot run the government. They can order an investigation into a scam, but they cannot decide tax rates or foreign policy. The boundary is clear: review, not govern.

2. The Doctrine of Political Questions

Some issues are inherently political and non-justiciable. Courts refuse to hear matters that involve policy choices best left to the legislature or executive. For example, the wisdom of a particular economic policy, the adequacy of national security measures, or the decision to sign a treaty — these are political questions, not legal ones.

The court asks: Is there a legal standard to decide this? If the answer is no, the court stays out.

3. Locus Standi (Standing)

Only an aggrieved person can approach a court for judicial review. You cannot challenge a law just because you disagree with it philosophically. You must show that the law directly harms your rights or interests.

Note

India has relaxed this rule through Public Interest Litigation (PIL), where any public-spirited citizen can approach the court on behalf of those who cannot. But even PIL has limits — the petitioner must demonstrate bona fide public interest, not personal vendetta or publicity.

4. Exhaustion of Alternative Remedies

Courts generally refuse to hear a case if the petitioner has not first used other available remedies. If a law provides for an appeal to a tribunal or a departmental authority, you must go there first before knocking on the High Court's door under Article 226.

This prevents the courts from being flooded with cases that could be resolved elsewhere.

5. The Doctrine of Severability

If only a part of a law is unconstitutional, the court will strike down only that part — not the entire law — provided the remaining part can stand independently. The court cannot rewrite the law, but it can surgically remove the offending portion.

6. The Doctrine of Eclipse

A pre-constitutional law that violates fundamental rights is not dead; it is merely eclipsed. If the Constitution is later amended to remove the conflict, the law revives automatically. The court's review here is limited to determining whether the eclipse still exists.

7. Self-Imposed Restraint (Judicial Restraint) …

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The 1970s witnessed two major constitutional clashes between Parliament and the Judiciary: the question of Parliament's power to amend fundamental rights, and the conflict over judicial appointments and the primacy of the Chief Justice of India.

The 1970s were a decade of intense constitutional friction in India. The Parliament, riding on a massive electoral mandate after the 1971 war, sought to push through sweeping social and economic reforms. The Judiciary, particularly the Supreme Court, acted as a check, interpreting the Constitution in ways that sometimes frustrated the government's agenda. This led to two landmark constitutional issues that reshaped the balance of power.

The first and most fundamental issue was the extent of Parliament's power to amend the Constitution, especially the Fundamental Rights. In the early 1970s, the government enacted several laws, including land ceiling acts and the abolition of privy purses, which were challenged in court. The Supreme Court, in the famous Kesavananda Bharati case (1973), delivered a historic verdict. It held that while Parliament could amend any part of the Constitution, it could not destroy or alter its "basic structure." This included fundamental rights, judicial review, and the rule of law. The government was furious. It saw this as a judicial veto over the will of the people expressed through Parliament. The issue came to a head when the government, in response, tried to supersede the seniority of judges and appoint a Chief Justice who was more aligned with its views. This was a direct challenge to the judiciary's independence.

Important

The Kesavananda Bharati case established the "basic structure" doctrine, which remains the cornerstone of Indian constitutional law. It means that even a constitutional amendment passed by a huge majority can be struck down if it violates the core principles of the Constitution. …

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Same / Similar Concept — real previous-year questions on the same or a closely similar concept, not this exact question.

CBSE 2020Set 59/1/11 mark
$Q. “The Emergency and the period around it can be described as a period of constitutional crisis.” Analyse the main reason behind this statement.$
›Reveal solutionSolution

The 1975–77 Emergency is called a constitutional crisis because it saw the executive suspend fundamental rights, override federalism, and subordinate the judiciary, breaking the core balance the Constitution was designed to protect.

The statement that the Emergency and the period around it was a “constitutional crisis” is not an exaggeration — it captures a moment when the basic architecture of India’s Constitution came under severe strain. To understand why, you have to look at what the Constitution was meant to do: create a government that is powerful enough to govern, but limited enough to protect liberty, federalism, and the rule of law. The Emergency, especially the nineteen months between June 1975 and March 1977, pushed against every one of those limits.

The most immediate reason for calling it a crisis lies in the suspension of fundamental rights. Article 19 — which guarantees freedom of speech, assembly, and movement — was automatically suspended when the Emergency was proclaimed under Article 352. But the government went further: it also suspended the right to move any court for the enforcement of fundamental rights (Article 359). That meant a citizen could not even file a petition claiming their rights had been violated. For a Constitution that begins with a chapter on fundamental rights, this was a profound break. The courts, which are supposed to be the guardians of those rights, were effectively shut out.

Important

The suspension of the right to approach the courts for fundamental rights meant that, for the first time, the Constitution’s most basic promises to the individual became unenforceable — a direct blow to the rule of law.

The crisis also showed itself in the relationship between the centre and the states. Federalism — the division of power between the Union and the states — is a key feature of the Constitution. During the Emergency, the central government used its powers under Article 356 to dismiss state governments that were not from the ruling party. Opposition-ruled states like Tamil Nadu, Gujarat, and Maharashtra were brought under President’s Rule. This was not a new provision, but its use during the Emergency was seen as a political weapon rather than a constitutional safeguard. The federal balance, already tilted towards the centre, was pushed to the point where states lost all meaningful autonomy.

Then there is the role of the judiciary. The most famous case from this period is the ADM Jabalpur case (1976), where the Supreme Court held that even the right to life and personal liberty could be suspended during the Emergency. The majority judgment said that a person’s right to approach the court for habeas corpus — the most ancient remedy against illegal detention — did not exist when the Emergency was in force. Only one judge, Justice H.R. Khanna, dissented, arguing that the Constitution did not give the state the power to take away life or liberty without legal authority. That dissent became a symbol of judicial courage, but the fact remains that the highest court of the land had, for a time, refused to protect the most basic human right.

Note

Justice Khanna’s dissent in the ADM Jabalpur case is often cited as the finest hour of the Indian judiciary during the Emergency — but it also highlights how close the institution came to abandoning its constitutional role. …

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Q.Highlight any two constitutional issues between the Parliament and the Judiciary during the 1970s.

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