Mentors Comments:
- Discuss the judgement in Coelho case.
- Discuss the idea of Judicial Review and Basic Structure.
- Mention how judicial review evolved to be a part of Basic structure in India.
Answer:
Coelho case is one of the landmark judgments on the interpretation of the doctrine of basic structure of the constitution as laid down in Kesavananda Bharti case.
I.R. Coelho v. State of Tamil Nadu:
- In this case, a nine-member bench of Supreme Court held that ninth schedule items are not immune to judicial review as it is part of the constitution.
- Further, nothing in the Ninth schedule can abrogate fundamental rights as they form basic features of the constitution.
- The objective behind Article 31B of the Constitution is to remove difficulties and not to wipe out judicial review per se.
- Therefore every amendment to the constitution including amendment to the Ninth schedule has to be in accordance with the basic structure doctrine.
Doctrine Of Basic Structure:
- Doctrine of Basic Structure was propounded in KeshavanandaBharti Case.
- It includes many features – federalism, right to equality, Fundamental Rights, Secularism, independence of Judiciary etc.
- Judicial Review one of these features is of key importance.
- It is used to protect the primacy of the constitution against the breach of power by legislatures and executive.
- Judicial review subjects any tyrannous law to judicial scrutiny which tests it for the violation of all features of the basic structure of the constitution- including abrogation of judicial review itself.
- 9th Schedule which was introduced by the 1st amendment to protect certain acts in violation of Article 14, 19 and 21 is not immune from judicial review.
The judicial review is of key importance among the basic structure of the constitution as:
- Judicial review is an effective means to protect the fundamental rights of citizens from legislative oversight.
- It is used to protect the primacy of the constitution against the breach of power by legislature and executive.
- Judicial review attains primary importance as it subjects all legislations to close scrutiny adhering to the doctrine of basic structure which includes judicial review itself.
- Without judicial review, basic structure would be rendered powerless and open to violation by arbitrary or draconian laws.
- Judicial review is an effective tool for safeguarding the Constitution which becomes extremely necessary keeping in mind the bad experiences of Emergency.
Examples of use of judicial review:
- Striking down of NJAC (99th constitutional amendment) terming it to be unconstitutional.
- Establishing the upper limit of reservation to 50% in Indira Sawney case
Therefore, judicial review is a crucial aspect and cornerstone to our constitutional setup. However necessary care should be taken to ensure that judicial review doesn’t lead to judicial overreach which is harmful to a democratic set up like India.
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The structure and the presentation need a lot of improvement here.
There is virtually no subheadings in the answer.
The content is placed in the paragraph formats which makes the answer over-explained.
In terms of structure, the 2nd part of the question is not handled according to the demand of the question. Reason is its depth. It seems as if it is the concluding paragraph of the answer.
The 1st part’s content is decent and it has the necessary coverage.
the points are informative. But please use bullet points.
You have underlined some aspects of the answer but do use them more frequently.
In the 2nd part, mention how judicial review evolved to be a part of Basic structure in India and use a subheading like “The judicial review is of key importance among the basic structure of the constitution because:” and then discuss the pointers there.
Also in the 2nd part, give a couple of examples of judicial review.
Read the model answer for the missing talking points.
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You started introduction by referring to current context of demand of judicial review. This is a good way to write a quick and relevant introduction.
But central theme of this question is Coelho case and you might have started with 9th schedule. But then its ok. Many ways to begin. Size of your introduction is just perfect of exam time scenario.
You have covered all aspects of question separately. This will enable examiner to see quickly that all parts are covered. Good!!
Content is also good with references to Articles, Supreme court judgments and use of examples.
However, I would have liked to see at least one example of law placed under 9th schedule like Land reform laws or Urban land ceiling laws etc.
Please check whether Article 223 is related to judicial review. Probably not.
If you are not sure about article, better not use that instead of being caught wrong on fact!!
Maintain some space while changing from Introduction to Main body to conclusion. That will make all parts of your answer stand out. Currently they look like in continuum.
Good that you used a quick diagram to bring out challenges in judicial review.
Overall good answer.
Keep it up!!
As mentioned by Banke, avoid misquoting of article numbers. Article 223 provides for the appointment of acting Chief Justice by the President of India whenever the office of the Chief Justice of a High Court falls vacant due to any reason such as absence or otherwise.
Apart from this, the overall answer is near perfect.
Good amount of examples in the 2nd part of the answer where you discussed various judgements.
Your overall approach is decent.
The content discussed in the answer is on the right path and it is well presented.
The language is perfect and well explained in each part.