Doctrine of basic structure of India's Constitution

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Index
Introduction.......................................................................................................................................1
Constitutional Provisions.....................................................................................................................1
The Basic Structure: Origin of the debate.............................................................................................2
Preserving the Basic Structure.............................................................................................................2
Shankari Prasad & Sajjan Singh Cases ..............................................................................................2
The Golaknath Case........................................................................................................................3
The Keshavananda Bharati Case......................................................................................................4
The Indira Gandhi Case....................................................................................................................5
The Minerva Mills Case ...................................................................................................................5
Other Consolidating Cases...............................................................................................................6
Expansion of Art. 21 by the Apex Court................................................................................................7
Rule of Law.....................................................................................................................................7
Right to Dignity...............................................................................................................................8
Other New Rights under Art. 21 .......................................................................................................8
Expansion of the definition of the ‘state’..............................................................................................9
Directive Principles incorporated in Fundamental Rights.......................................................................9
The Courtin the Executive Domain....................................................................................................10
The Court as Statutory Regulator.......................................................................................................12
Conclusion .......................................................................................................................................13

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Judicial Activism of the Supreme Court of India in Defense of the Constitution and Citizens
Introduction
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-
making whereby judges allow their personal views about public policy, among other factors,
to guide their decisions." Former CJI AM Ahmadi, said, “In recent years, as the incumbents
of Parliament have become less representative of the will of the people, there has been a
growing sense of public frustration with the democratic process.” This is the reason why the
(Supreme) Court had to expand its jurisdiction by, at times, issuing novel directions to the
executive.” Indeed, Soli J Sorabjee said “judicial activism has contributed to the protection
of fundamental human rights.” This paper analyzes judicial activism of the Apex Court in its
role as the defender of the Constitution and the people of India.
Constitutional Provisions
Unlike in the US, judicial review in India was provided for expressly in Art. 13 of the
Constitution. Art. 13(1) states that all laws in force in the territory of India immediately
before the commencement of the Constitution, in so far as they are inconsistent with the
provisions containing the fundamental rights, shall to the extent of such inconsistency, be
void. Art. 31(2) prohibits the State from enacting any law that takes away the fundamental
rights of citizens and renders void any law that is repugnant to this principle. In order to
adjudicate whether a statute is inconsistent with a fundamental right, the Court has evolved
formulae tailored to different sets of situations.
Art. 245 of the Constitution invests the Parliament with the power to make laws
subject to the provisions of the Constitution. Art. 368 provides the Parliament with a special
type of power, i.e., to amend constitutional provisions. This power can be exercised through
a two-thirds majority in both Houses of Parliament and, in some cases, with the additional
consent of half the number of State legislatures. The Article remains silent, however, upon
the exact nature, scope and limitations (if any) of the amending power.

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The Basic Structure:Originof the debate
The theory of basic structure has a background rooted in the right to property. The
constitution-makers in their enthusiasm to guarantee fundamental rights to the people
incorporated provisions similar to S. 299 of the Government of India Act, 1935, in Art. 31
conferring the right to property in an unqualified manner. Originally, the Constitution
guaranteed a citizen, the fundamental right to acquire hold and dispose of property under
Art. 19f. Under Art. 31 he could not be deprived of his property unless it was acquired by
the State, under a law that determined the amount of compensation he ought to receive
against such an acquisition. Property owned by an individual or a firm could be acquired by
the State only for public purposes and upon payment of compensation determined by the
law. Art. 31 has been modified six times - beginning with the 1st Amendment in 1951 -
progressively curtailing this fundamental right.
Parliament added the Ninth Schedule to the Constitution through the very first
amendment in 1951 as a means of immunizing certain laws against judicial review on the
ground that they violated the fundamental rights of citizens. This protective umbrella
covered more than 250 laws passed by state legislatures with the aim of regulating the size
of land holdings and abolishing various tenancy systems.
Finally in 1978, Art. 19f was omitted and Art. 31 repealed by the 44th Amendment.
Instead Art. 300A was introduced in Part XII making the right to property only a legal right.
This provision implies that the executive arm of the government could not interfere with the
citizen's right to property. However, Parliament and state legislatures had the power to
make laws affecting the citizens' right to property.
Preserving the Basic Structure
Shankari Prasad & Sajjan Singh Cases
The question whether fundamental rights can be amended under Art. 368 came for
consideration in the Supreme Court in Shankari Prasadi case. In this case there was a conflict
between Art. 13 and 368. The argument against the validity of the 1st Amendment was that
Art. 13 prohibited enactment of a law infringing or abrogating the Fundamental Rights,
which the word “law” in Art. 13 would include any law; even a law amending the
Constitution and therefore, the validity of such a law could be judged and scrutinized with

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reference to the Fundamental Rights which it could not infringe. The Court held that the
term “law” in the Art. 13 referred to ‘legislative’ law and did not encompass constitutional
amendments in it. It was held that the Fundamental Rights are not immune from
constitutional amendment under the Art. 368 of the Constitution. The same view was held
by the Court in the Sajjan Singh caseii where the validity of the Constitution (17th
Amendment) Act, 1954, was questioned as it affected the right to property.
However in this case 2 dissenting Judges, Hidayatullah and Mudholkar, raised their
doubts on whether the rights of people should become a plaything in the hands of the
majority. Hidayatullah, J., observed, “the constitution gives so many assurances in Part III
that it would be difficult to think that they were play-things of a special majority.”
Mudholkar J. observed that the framers may have intended to give permanency to certain
“basic features” such as the three organs of the State, separation of powers etc. He also
questioned whether a change in the basic features of the Constitution could be defined as
an “amendment” within the meaning of Art. 368, or whether it would amount to rewriting
the Constitution itself. Gajendragadkar C.J., speaking for himself and two others, upheld
Shankari Prasad. However, many expressed doubts about the verdict.
The Golaknath Case
In the Golak Nath caseiii, the validity of the 17th Amendment which inserted certain
acts in Ninth Schedule was again challenged. J. Subba Rao put forth a new interpretation of
Art. 368 and said that it merely laid down the amending procedure. The amending power
(constituent power) of Parliament arose from other provisions contained in the Constitution
(Arts. 245, 246, 248) which gave it the power to make laws (plenary legislative power). Thus,
the apex court held that the amending power and legislative powers of Parliament were
essentially the same. Therefore, any amendment of the Constitution must be deemed law
as understood in Art. 13 (2). The judges stated that the fundamental rights were so
sacrosanct and transcendental in importance that they could not be restricted even if such a
move were to receive unanimous approval of both houses of Parliament. They observed
that a Constituent Assembly might be summoned by Parliament for the purpose of
amending the fundamental rights if necessary. In other words, the apex court held that
some features of the Constitution lay at its core and required much more than the usual
procedures to change them.

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However the 5 minority judges upheld the power of parliament to amend
Fundamental Rights. They reasoned that the Constitution would become disabled and static
if no such powers were conceded to the Parliament. The far reaching consequences of the
Golaknath case lead to the 24th and the 25th Amendment of the constitution.
The Keshavananda Bharati Case
The Court recognized the basic structure concept for the first time in the historic
Kesavananda Bharati caseiv in 1973 which has been acclaimed an “epoch-making decision”.
The majority of 7 Judges out of 13 “struck a bridle path by holding that in the exercise of the
power conferred by Art. 368, the Parliament cannot amend the Constitution so as to
damage or destroy the basic structure of the Constitution.”
The Apex Court declared that Art. 368 did not enable parliament to alter the basic
structure or framework of the Constitution and parliament could not use its amending
powers under Art. 368 to 'damage', 'emasculate ', 'destroy', 'abrogate', 'change’ or 'alter'
the 'basic structure ' or framework of the constitution. In this seminal case Sikri, CJ.,
mentioned the following as the “basic foundation and structure” of the Constitution, viz.
supremacy of the Constitution, separation of powers between the legislature, the executive
and the judiciary, republican and democratic form of government, secular character of the
Constitution and Federal character of the constitution. The other Judges mentioned in
addition to this 3 more basic features, viz. dignity of the individual secured by the various
Fundamental Rights and the mandate to build a welfare state contained in the directive
principles, unity and integrity of the nation, and preservation of the Parliamentary system.
Golaknath had made all fundamental rights as non amendable. However in
Kesavananda this rigidity was made a bit more flexible by making only the fundamental
rights enshrined under the basic structure to be non-amendable. The reason for this was
that making all rights non-amendable would make the constitution static and hamper the
progress of the country. Thus only the fundamental rights that were a part of the basic
structure were immune from amendment. It was left for the courts to decide which right
was considered as a part of the basic feature. The basic philosophy underlying the doctrine
of non amendability of the basic features of the constitution, evolved by the majority in
Kesavananda has been aptly explained by Hedge and Mukherjee, JJ., as follows:

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“Our Constitution is not a mere political document………a constitution like ours
contains certain features which are so essential that they cannot be changed
or destroyed.”
The minority view delivered by AN Ray, MH Beg, KK Mathew and SN Dwivedi, JJ. also
agreed that Golaknath had been decided wrongly. They upheld the validity of all three
amendments challenged before the court. Ray, J. held that all parts of the Constitution were
essential and no distinction could be made between its essential and non-essential parts. All
of them agreed that Parliament could make fundamental changes in the Constitution by
exercising its power under Art. 368.
Therefore the Doctrine of Basic Structure was well established after this case.
The Indira Gandhi Case
The matter of the Doctrine of basic Structure again came up in the Supreme Court in
Indira Nehru Gandhi v. Raj Narainv. In this case, for the first time, the 39th constitutional
amendment was challenged with reference to an electoral law designed to ensure free and
fair elections which lay at the basis of a democratic parliamentary form of government.
Counsel for Raj Narain, the political opponent challenging Mrs. Gandhi's election, argued
that the amendment was against the basic structure of the Constitution as it affected the
conduct of free and fair elections and the power of judicial review. Counsel also argued that
Parliament was not competent to use its constituent power for validating an election that
was declared void by the High Court. Four out of five judges on the bench upheld the 39th
Amendment, but only after striking down that part which sought to curb the power of the
judiciary to adjudicate in the current election dispute. Beg, J. upheld the amendment in its
entirety. Mrs. Gandhi's election was declared valid on the basis of the amended election
laws. The judges grudgingly accepted Parliament's power to pass laws that have a
retrospective effect.
The Minerva Mills Case
In Minerva Mills casevi the Supreme Court by majority by 4: 1 majority struck down
clauses(4) and (5) of the Art. 368 inserted by 42nd Amendment, on the ground that these
clauses destroyed the essential feature of the basic structure of the constitution. It was
ruled by the Court that a limited amending power itself is a basic feature of the Constitution.

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Chandrachud, CJ., in Minerva Mills casevii observed thus, “ The Indian Constitution is
founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to
one to one over the other is to disturb the harmony of the constitution. This harmony and
balance between fundamental rights and directive principles is an essential feature of the
basic structure of the Constitution…….. The validity of the amendment is not to be decided
on the touchstone of Art. 13 but only on the basis of violation of the basic features of the
constitution.” Hence once again it was held that the elements of the basic structure cannot
be amended.
Other Consolidating Cases
The next two decades saw the consolidation of the doctrine. In a series of
judgments, collectively called the Tribunals Cases, it was held that judicial review of the
Court under Art. 32, and of High Courts under Art. 226, was a basic feature. First enunciated
in S.R. Bommai v. Union of India, and then crystallized in the decisions of Ismail Faruqui v.
Union of India and Aruna Roy v. Union of India, the Court developed the concept of the basic
feature of secularism as an attitude of even-handedness towards all religions. In I.R. Coelho
v. State of Tamil Nadu, the Court added Art.s 14 (right to equality), Art. 19 (fundamental
freedoms) and Art. 21 (right to life) to the list of basic features. In Bommaiviii Sawant and
Kuldip Singh, JJ., observed: “Democracy and Federalism are essential features of our
constitution and are part of its basic structure.” In the same case, the Supreme Court has
ruled that secularismis a basic or an essential feature of the Constitution. In State of Bihar v.
Bal Mukund Sah and Ors.ix, the Court observed that the concepts of “Separation of Powers
between the legislature, executive and Judiciary” as well as “the fundamental concept of
independent judiciary have been now elevated to the level of basic structure of the
constitution and are the very heart of the constitution scheme.”
In L. Chandra Kumar casex, a larger Bench of seven Judges unequivocally declared
"That the power of judicial review over legislative action vested in High Courts under Art.
226 and in the Supreme Court under Art. 32 of the Constitution is an integral and essential
feature of the Constitution, constituting part of its basic structure". There was further
affirmation of the basic structure doctrine in Waman Rao v. Union of Indiaxi. In Sampath
Kumar casexii and Sambamurthyxiii the judges laid down that the rule of law and judicial

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review were integral to the Basic Structure. Effective access to Justice is part of the basic
Structure, according to the ruling in Central Coal Fields casexiv.
In Kihoto Hollohonxv, the Court declared, “Democracy is a basic feature of the
Constitution and election conducted at regular prescribed intervals is essential to the
democratic system envisaged in the constitution. So is the need to protect and sustain the
purity of the electoral process that may take within it the quality, efficiency and adequacy of
the machinery for resolution of electoral disputes.” It was held in M. Nagraj and others v.
Union of Indiaxvi that “the law has to change. It requires amendments to the constitution
according to the needs of time and needs of society. It is an ongoing process of judicial and
constituent powers, both contributing to change of law with the final say in the judiciary to
pronounce on the validity of such change of law effected by the constituent power by
examining whether such amendments violate the basic structure of the constitution.”
It is also important to note certain other landmark judgments where basic structure
challenges were rejected. In Kuldip Nayar v. Union of India, both secret ballots, and domicile
requirements for election to State Legislative Assemblies were held not to be basic features.
In M. Nagaraj v. Union of India, the Constitutional amendment introducing Art.s 16(4A) and
16(4B), was impugned. These Art.s dealt with certain specifics of affirmative action.
Rejecting the contention that these provisions damaged equality, the Court observed that
they only enunciated certain specific rules of “service jurisprudence”, not affecting the basic
feature of equality under Art.s 14, 15 and 16 of the Constitution.
Expansionof Art. 21 by the Apex Court
Rule of Law
As in the case of the epic battle between the Apex Court and Parliament over the
latter’s Constitution-amending power, the former has also adopted an activist approach in
almost limitlessly expanding the scope of Art. 21. This has included prescribing laws when
there were none framed by the executive. In AK Gopalan v. State of Madras, xvii the Court
rejected the argument that to deprive a person of his life or liberty not only the procedure
prescribed by law for doing so must be followed but also that such procedure must be fair,
reasonable and just. However, subsequently in Maneka Gandhi v. Union of India, xviii this
requirement of substantive due process was introduced into Art. 21 by judicial

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interpretation. Thus, the due process clause, which was consciously and deliberately
avoided by the Constitution makers, was introduced by judicial activism of the Court. Such
reliance on Directive Principles is particularly apparent in legal aid, prison and
environmental litigation. The relevant Directive Principles are 39-A (state to provide free
legal aid) and 48-A (environmental protection). In Hussainara Khatoon v. Biharxix, the Court
therefore relied on Art. 39-A to support its finding that legal aid was a fundamental right
under Art. 21 and suggested, even in the absence of legislation, that if legal aid was not
provided by the state, criminal trials might be void. In PUDR v. Ministry of Home Affairsxx,
Art. 21 was said to include the right to be free from exploitation and therefore, must include
protection of the health and strength of workers, men and women, and of the tender age of
children against abuse, etc.
Right to Dignity
Another great arena of judicial activism was begun by the Indian Supreme Court
when it interpreted the word `life’ in Art. 21 to mean not mere survival but a life of dignity
as a human being. Thus the Supreme Court in Francis Coralie v. Union Territory of Delhixxi
held that the right to live is not restricted to mere animal existence. It means something
more than just physical survival. The Court held “… the right to life includes the right to live
with human dignity and all that goes along with it……….”
Other New Rights under Art. 21
The ‘right to privacy’ which is a new right was read into Art. 21 in R. Rajagopal V.
State of Tamil Naduxxii. The Court held that a citizen has a right to safeguard the privacy of
his own, his family, marriage, procreation, motherhood, child bearing and education, among
other matters. The Court also ruled that the right to life guaranteed under Art. 21 includes
the right to livelihood as wellxxiii. The right to food as a part of right to life was also
recognized in Kapila Hingorani V. Union of Indiaxxiv whereby it was clearly stated that it was
the duty of the State to provide adequate means of livelihood in the situations where
people are unable to afford food. The Court has also held that the right to safe drinking
water is one of the Fundamental Rights that flow from the right to lifexxv, a fair trialxxvi,
health and medical carexxvii, protection of tanks, ponds, forests etc, Family Pensionxxviii, legal
aid and counselxxix, against sexual harassmentxxx, medical assistance in case of accidentsxxxi,
against solitary confinementxxxii, against handcuffing and bar fettersxxxiii, speedy trialxxxiv,

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against police atrocities, torture and custodial violencexxxv, legal aidxxxvi and be defended by
an efficient lawyer of his choicexxxvii, interview and visitors according to the Prison Rulesxxxviii,
minimum wagesxxxix etc. have been ruled to be included in the expression of ‘right to life’ in
Art. 21. Recently the Supreme Court has directed providing a second home for Asiatic lions
in Centre for Environmental Law V. Union of Indiaxl on the ground that protecting the
environment is part of Art. 21. The right to sleep was held to be part of Art. 21 in the Ramlila
Maidan casexli. In Ajay Bansal vs Union of Indiaxlii, the Court directed that helicopters be
provided for stranded persons in Uttarakhand.
Expansionof the definition of the ‘state’
Similarly, judicial interpretation also expanded the definition of ‘State’ under Art. 12
of the Constitution whereby even corporationsxliii ‘instrumentalities of the State’, etc. were
brought within the scope of ‘State’ helping in the expanded enforcement of fundamental
rights. Art. 14 of the Constitution, which originally was understood to only mean non-
discrimination by the States, was later interpreted in Royappa’s case (1974) and Maneka
Gandhi’s case (1978) to also mean non arbitrariness. Right to freedom of expression
provided by Art. 19 of the Constitution is one of the widely construed rights. Thus, the right
also brings within its ambit the freedom of press and publication in the print mediaxliv and
the right to participate in the public communicative systemsxlv. The importance of this right
in democracy gained importance when the judiciary struck down the Ordinance that
amended the Representation of People Act, 1950, that allowed candidates’ non-disclosure
of assets stating that in the context of exercise of voting rights in democracy, the right to
know the assets, liabilities and past criminal records cannot be restricted by the right to
privacy of the candidatesxlvi.
Directive Principles incorporatedinFundamental Rights
Furthermore, though Directive Principles only talk about socio-economic rights
which are not enforceable, creative interpretation by reading them into the Fundamental
Rights (which are enforceable) formed a major step in developing these new rights and
above all advocating the rights of the unrepresented masses became much easier. In the
case of Unni Krishnan V. State of A. P.xlvii it was held that the right to education is a
Fundamental Right under Art. 21 as it ‘directly flows’ from right to life. Thus the Court

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interpreted Art. 21 in the light of Art.e 45 wherein the State is obligated to provide
education to its citizens up to 14 years of agexlviii. Similarly in M. C. Mehta Vs Union of
Indiaxlix the Supreme Court relying on Art. 48-Al gave directions to the Central and the State
Governments and various local bodies and Boards under the various statutes to take
appropriate steps for prevention and control of pollution of water. In Vishakha v. State of
Rajasthan, the judiciary expressly laid down the law regarding sexual harassment at the
work place. In Sakshi V. Union of Indiali, the provisions of in camera proceedings were made
applicable in cases of rape victims keeping in view their needs in the absence of specific
legislative provisions.
Another instance where the judiciary came to the rescue of people was the case of
Lata Singh V. State Of U.P. & Anotherlii, where the Court, taking note of the deep rooted
caste system of the country, came down hard on the relatives of a newly married couple
who resorted to violence and harassment as a way of showing their anger on the boy and
girl marring outside their caste or religion.
In, Bhagwan Dass V. State (NCT) of Delhiliii, the Court mandated death sentence for
`honor killing’ i.e. killing of young men and women who married outside their caste or
religion, or in their same village, thereby `dishonoring’ the parents or their caste. The most
recent case on judicial activism was the case of Aruna Ramchandra Shanbaug V. Union of
India and Othersliv. Aruna Shanbaug, a nurse in 1973, while working at a Hospital at Mumbai,
was sexually assaulted and has been in a permanent vegetative state since the assault. In
2011, after she had been in this status for 37 years, the Supreme Court of India heard the
petition to the plea for euthanasia filed by a social activist claiming to be Aruna’s friend. The
Court turned down the petition, but in its landmark judgment, allowed passive euthanasia
i.e. withdrawal of life support to a person in permanently vegetative state, subject to
approval by the High Court.
The Court in the Executive Domain
Although Art. 50lv of the Indian Constitution expressly provides for separation of
powers between the different organs of the State, but time and again, the Court has taken
on itself the task of filling in the gaps created by the Legislature and the Executive to do
‘justice’.

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While doing so, the judiciary has been often criticized for overstepping its limits. In
the case of Vineet Narain V. Union of Indialvi, the Court invented a new writ called
“continuing mandamus” where it wanted to monitor the investigating agencies which were
guilty of inaction to proceed against persons holding high offices in the executive who had
committed offences. Furthermore, the Court granted statutory basis to the Central Vigilance
Commission, which was not contemplated by the statute (the Delhi Special Police
Establishment Act, 1946), for supervising the functioning of a statutory body, the Central
Bureau of Investigation. The Court also laid down a number of guidelines for the
appointments of chiefs of investigating agencies like Central Bureau of Investigation, Central
Vigilance Commission and the Enforcement Directorate; apart from the Chiefs of the State
Police. These guidelines, apart from being in relation to appointment, were also with regard
to their status, transfer and tenure, etc. The question arises whether this was legitimate
exercise of judicial power.
In the case of Indian Council for Enviro-Legal Action V. Union of Indialvii, the Court
passed various orders especially directed towards the States requiring them to submit
management plans to control pollution to both, the Central Government as well as the
Court. Here, the Court held that it was only discharging its judicial functions in ensuring that
it remedies the errors of the executive. In the case of M.C Mehta v. Union of Indialviii, where
a writ was filed with regard to the vehicular pollution in Delhi, the Supreme Court had
passed directions for the phasing out of diesel buses and for the conversion to CNG. When
these directions were not complied with due to shortage in supply of CNG, the Court held
that orders and directions of the Court could not be nullified or modified by State or Central
governments. This was a case where, despite several directions being given by the Supreme
Court, the government did not act speedily in responding to the Order.
The Court has prescribed norms regarding the running of the prisons and mental
intuitionslix, instructed the Government to implement labor laws at construction siteslx,
recognized admissions in medical colleges throughout India laying down examination
scheduleslxi, prescribing hawking zones in metropolitan citieslxii, laid down the guidelines for
the retail outlets for essential commodities such as LPGlxiii, resolving disputes between
public undertakings of Central Government,lxiv directed the authorities like CBI to conduct
and complete investigation expeditiously in cases of national importance, directed the

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noxious factories to restart on the technical reports on safety measureslxv, prescribed the
poverty limits for the low income urban housinglxvi or set up an expert panel headed by a
retired Supreme Court judge to study the vehicular pollution levellxvii etc. In these decisions
the court did legislate, but in the process was criticized for having infringed upon the
executive domain. The Networking of Rivers caselxviii raised major technical and
administrative problems that were in the domain of the legislature or executive.
The Apex Court has also prescribed rules in many cases, although mostly for reasons
that none existed or because the executive was unwilling to make new laws for various
reasons. In Divisional Manager, Aravalli Golf Club V. Chandrahasslxix, the Court declared that
though judicial activism is sometimes a useful appendage to democracy, it should be
resorted to only in exceptional circumstances when the situation forcefully demands it in
the interest of the nation or the poorer and weaker sections of society. Ordinarily the
judiciary should exercise self-restraint. In Vishaka v. State of Rajasthanlxx, there was no law
for protection of women from sexual harassment at work places, and hence no gap in an
existing law. Yet the Court laid down guidelines in this connection, and said that this will be
the law until Parliament makes a law on the subject. In Networking of Riverslxxi the Court
directed interlinking of the rivers of India. Such an order raises a host of problems, e.g.
finance, planning, land acquisition, civil construction, environmental issues, etc.
In L.K. Pandey v. Union of Indialxxii, detailed guidelines have been issued by the Court
for inter-country adoption, though there is no legislation on the subject. In Kumari Mathuri
Patil v. Addl. Commissionerlxxiii, in order to check issuance of false and fabricated scheduled
caste certificates, the Court issued a set of 15 guidelines about how such certificates should
be issued, which authority can issue them, etc. It also created a vigilance cell headed by a
senior police officer to check the malpractice. In Dayasram v. Suhi Balhamlxxiv the Court
doubted the correctness of this judgment, and referred the matter to a larger bench, but
the larger bench upheld the directives, saying that they were meant to fill in a legal vacuum.
The Court as Statutory Regulator
The Court has also taken upon itself the role of statutory agencies. However, in many
cases such agencies have failed to honor the Court’s judgments owing to a variety of factors.
In M.C. Mehta v. Union of Indialxxv the Court directed that the maximum speed limit of heavy

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vehicles in Delhi can be 40 kmph. However, fixing speed limits is the task of the State
Government or its nominee under S. 112 Motor Vehicles Act, 1988. In G. Veerappa Pillai vs
Raman and Ramanlxxvi, the High Court had in a decision directed the Regional Transport
Authority to issue a bus permit to the petitioner. On appeal, the Court set aside this order,
holding that under the Motor Vehicles Act only the RTA could issue the permit, and the High
Court by its order in effect granted the permit itself.
The Court has also, sometime, ignored a statutory or Constitutional provision, and
substitute it by its own order as in the second Judges case (Supreme Court Advocate on
Record Association v. Union of Indialxxvii) in which the court in effect ignored the provisions
of Art. 124 for appointing Judges to the Supreme Court, and substituted its own procedure
(The Collegium System). While in Aravali Golf Course v. Chander Haas the court held that it
did not have the authority to direct the legislature to make a law or amend an Act of the
legislature, yet in Vineet Narain v. Union of Indialxxviii the Court directed amendment to the
Delhi Special Establishment Act 1946 placing the CBI under the Central Vigilance
Commission.
Conclusion
In fine, judicial activism of the Apex Court has been occasioned by a bevy of reasons,
mostly in safeguarding the rule of law, be they in defense of civil liberties, environment,
and/or bonded labor, etc. The Court’s long standing stand-off with Parliament has been
mainly positive. However, in the field of environmental and administrative law, not only has
the Court been forced to reckon with administrative ennui but also recalcitrant private
parties. While the Court has faced charges of excessive activism, nonetheless its record has,
by and large, remained positive even when faced with limitations of technical knowledge
and hostile executive authority, notably during Mrs. Indira Gandhi’s tenure as Prime
Minister of India. The Court has also swung from extremities of prescribing policy to where
none existed to preserving the right of the executive to frame policy in recent times, notable
being J., AK Ganguly’s termination of 122 2G spectrum licenses and the Court’s
contemporary pursuance of CBI investigations in the coal allocations issue. Notwithstanding
the Court’s activism, excess of it in recent times, may cause questions of legitimacy of the
Court to arise in the near future.

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Bibliography
Jain, MP: Indian Constitutional Law (6th Reprint), ISBN: 8180386213, 2013
Basu, DD: Introduction to the Constitution of India (21st ed.) ISBN: 8180389184, 2013
Citations
i Sankari Prasad Singh v. Union of India, AIR 1951SC 458
ii Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933: AIR 1965 SC 845
iii 1967 AIR 1643, 1967 SCR (2) 762
iv Supra Note (ii)
v Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299
vi Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
vii Supra Note (viii)
viii S.R. Bommai v. Union of India AIR 1994 SC 1918 at 1976
ix AIR 2000 SC 1296
x L. Chandra Kumar v. Union of India (1997) 3 SCC 261(at SCC p. 301, para 78)
xi (1981)2 SCC 362
xii S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124
xiii P. Sambamurthy v. State of Andhra Pradesh (1987) SCC 362
xiv Central Coal Fields Ltd. V. Jaiswal Coal Co. 1980 Supp SCC 471
xv AIR 1993 SC 412
xvi (2006) 8 SCC 212
xvii AIR 1950 SC 27
xviii AIR 1978 SC 597
xix AIR 1979 SC 1360
xx A.I.R. 1985 268
xxi AIR 1978 SC 597
xxii (1994) 6 SCC 632
xxiii Olga Tellis V. Bombay Municipal Corporation; AIR 1986 SC 180
xxiv (2003) 6 SCC 1
xxv A. P. Pollution Control Boards V. Prof. MV Nayudu; AIR 1999 SC 822
xxvi Police Commissioner, Delhi V. Registrar, Delhi High Court, AIR 1999 SC 95
xxvii Consumer Education and Research V. Union of India, AIR 1995 SC 922
xxviii Hich Lal Tiwari V. Kamla Devi and Others, (2001) 6 SCC 496
xxix S. K. Mastan Bee V. GM South Central Railway, (2003) 1 SCC 184
xxx Vishakha V. State of Rajasthan, 1997 (6) SCC 241
xxxi P. Katara V. Union of India, (1998) 4 SCC 286
xxxii Sunil Batra V. Delhi Admi. (1978) 4 SCC 498
xxxiii Charles Shobhraj V. Delhi Admi. (1978) 4 SCC 104
xxxiv Hussainara Khatoon V. Home Secretary, (1980) 1 SCC 81
xxxv Sheela Barse V. State of Maharashtra, (1983) 2 SCC 96 and D. K. Basu V. State of West
Bengal, (1997) 1 SCC 4116
xxxvi Khatri V. State of Bihar, AIR 1981 SC 928
xxxvii State of M.P. V. Shobharam, AIR 1966 SC 2193

15
xxxviii Prabha Dutt V. Union of India, AIR 1986 SC 6
xxxix State of Gujarat V. Hon’ble High Court of Gujarat, (1998) 7 SCC 392
xl WP 337/1995 decided on 15.4.2013
xli (2012) S.C.I.1
xlii (2008) ILLJ 199 Del
xliii Ramana V. International Airport Authority., (1979) 3 SCC 479
xliv Romesh Thapar V. State of Madras, AIR 1950 SC 124
xlv Indian Express Newspaper (Bombay) V. Union of India, AIR 1986 SC 515
xlvi Peoples Union for Civil Liberties V. Union of India, (2003) 4 SCC 399
xlvii (1993) 1 SCC 64
xlviii Art. 45: The State shall endeavor to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until
they complete the age of fourteen years.
xlix (1988) 1 SCC 471
l Art. 48-A: The State shall endeavor to protect and improve the environment and to
safeguard the forests and wild life of the country.
li (2004) 5 SCC 518
lii 2006 (5) SCC 475
liii 2011(5) Scale 498,
liv JT 2011 (3) SC 300
lv Art. 50: The State shall take steps to separate the judiciary from the executive in the public
services of the State.
lvi 1998 Cri. L. J. 1208
lvii (1996) 5 SCC 281
lviii (2001) 3 SCC 763
lix Sheela Barse V. State of Maharashtra, (1983) 2 SCC 96
lx Labors on Sala Hydro Electricity Project V. State of J & K, (1984) 3 SCC 538
lxi Pradeep Kumar Jain V. State of .P., AIR 1984 SC 1420
lxii Bombay Hawkers Union V. B.M.C., (1985) 3 SCC 528
lxiii Center for PIL V. Union of India, 1995 Sppl. (3) SCC 382
lxiv ONGC V. Collector of Central Excise, 1995 Sppl. (3) SCC 541 (since reversed)
lxv M. C. Mehta v. Union of India, (1986) 2 SCC 176
lxvi Shantisar Builders V. L. Narayan, (1990) 1 SCC 520
lxvii M. C. Mehta v. Union of India, (1991) 2 SCC 353
lxviii (2012) 4 S.C.C. 51
lxix AIR 2008 SCW 406
lxx AIR 1997 S.C. 3011
lxxi (2012) 4 S.C.C. 51
lxxii AIR 1986 S.C. 272
lxxiii (1994) 6 S.C.C. 241
lxxiv (2012) 1 S.C.C. 333
lxxv (1997) 8 S.C.C. 770
lxxvi AIR 1952 S.C. 192
lxxvii WP (Civil) 1303 of 1987
lxxviii AIR 1998 S.C. 889

Doctrine of basic structure of India's Constitution

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