No area of the Constitution should be immune from judicial review, says former CJI D.Y. Chandrachud

Former Chief Justice of India, D.Y. Chandrachud's assertion that "no area of the Constitution should be immune from judicial review" and his concern that "national security laws have turned the basic principles of bail on their head" are profoundly significant statements for Indian constitutional jurisprudence. These remarks, made during a conversation with N. Ravi, highlight ongoing critical debates on the balance of power, individual liberties, and the role of the judiciary in a democratic state.

**Background Context: The Evolution of Judicial Review**

Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. If they are found to violate the Constitution, they can be declared unconstitutional and invalid by the Supreme Court and High Courts. This power is explicitly enshrined in various articles of the Indian Constitution, primarily Article 13 (declaring laws inconsistent with Fundamental Rights void), Article 32 (right to constitutional remedies, empowering the Supreme Court), and Article 226 (empowering High Courts). The concept gained immense prominence with the landmark **Kesavananda Bharati v. State of Kerala (1973)** case, where the Supreme Court propounded the 'Basic Structure Doctrine'. This doctrine stipulates that while Parliament can amend any part of the Constitution, it cannot alter its basic structure or essential features. Judicial review itself is considered a part of this basic structure, meaning it cannot be abrogated even by a constitutional amendment. CJI Chandrachud's statement reaffirms this fundamental principle, underscoring that the judiciary acts as the ultimate guardian of the Constitution, ensuring that no branch of government, including the Parliament (even when exercising its constituent power), can overstep its bounds or undermine the foundational principles of the republic.

**The Challenge of National Security Laws and Bail**

CJI Chandrachud's second point addresses a critical tension between state security and individual liberty. National security laws, such as the **Unlawful Activities (Prevention) Act (UAPA), 1967**, and the **National Security Act (NSA), 1980**, are designed to combat terrorism and other threats to national integrity. However, their stringent provisions often lead to concerns about their impact on fundamental rights, particularly the right to personal liberty (Article 21). The 'basic principles of bail' typically involve the presumption of innocence, the right to a speedy trial, and the idea that bail is the rule and jail is the exception. However, under laws like UAPA, the burden of proof often shifts to the accused, and bail conditions are exceptionally difficult to meet. Section 43D(5) of UAPA, for instance, mandates that bail cannot be granted if the court is of the opinion that there are 'reasonable grounds for believing that the accusation against such person is prima facie true'. This provision effectively reverses the general principle of 'innocent until proven guilty' and makes pre-trial detention the norm, thereby 'turning the basic principles of bail on their head'.

**Key Stakeholders and Their Roles**

* **Judiciary:** As the interpreter and guardian of the Constitution, the Supreme Court and High Courts play a crucial role in balancing national security with fundamental rights through judicial review. They are the ultimate arbiters of constitutional validity.

* **Legislature (Parliament):** Responsible for enacting laws, including national security legislation. The judiciary's role is to ensure these laws conform to constitutional principles.

* **Executive:** Implements these laws through law enforcement agencies. The executive's actions are also subject to judicial scrutiny.

* **Citizens/Civil Society:** Individuals whose fundamental rights are directly affected by these laws and civil society organizations that advocate for human rights and constitutional principles.

**Why This Matters for India**

These remarks are crucial for India's democratic health. They reinforce the idea of constitutional supremacy over parliamentary supremacy, a cornerstone of India's governance structure. For a diverse and complex nation like India, maintaining a delicate balance between state power (necessary for security and order) and individual freedoms (essential for a vibrant democracy) is paramount. An overreach by the state, even in the name of national security, can erode democratic values and lead to arbitrary detentions and human rights abuses. Judicial vigilance ensures accountability and prevents the concentration of unchecked power, safeguarding the rights enshrined in Part III of the Constitution. This debate has significant social implications, as it often affects marginalized communities and dissenters more severely.

**Future Implications**

CJI Chandrachud's strong assertion could signal a trend towards more rigorous judicial scrutiny of national security laws and their application. It might encourage courts to interpret such provisions more strictly, ensuring that the spirit of fundamental rights, particularly Article 21, is not diluted. This could lead to more robust challenges against prolonged detentions without trial and a re-evaluation of the stringent bail conditions. While the judiciary must respect the legislature's role in framing security policies, it also has the duty to ensure these policies do not become instruments of oppression. This ongoing dialogue between the judiciary and other branches of government is vital for the continuous evolution and strengthening of India's constitutional democracy.