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The various articles of the constitution (Part V, Chapter IV - The Union Judiciary) regarding the supreme court seem to give the impression that their conduct is heavily regulated by presidential consent and laws made by parliament. But am I missing something ?

It appears that in the chapter dealing with the Union List, the parliament has the power to make laws limiting the jurisdiction and powers of the Supreme Court. is this true?

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    My reading differs. Parliament has the power to enlarge the jurisdiction of the Supreme Court to any matters on the Union List, but it can't remove the powers explicitly granted by the constitution. Can you explain how you reach your conclusion in more detail?
    – James K
    Mar 12, 2023 at 20:36
  • The title seems to have no relationship to the question. Judicial review normally refers to the courts reviewing decisions by the executive, not vice versa.
    – Stuart F
    Mar 13, 2023 at 15:38
  • @StuartF I disagree, I think those are reasonably related. If the parliament has the power to decide jurisdiction of the court, the possibility that it takes away the court's ability to conduct constitutional review is significant. We've see as much in Israel this year. Apr 13, 2023 at 2:13

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My understanding is "No". The Indian parliament does not have the power to take away the court's power to conduct judicial review.

A quick search on Indian constitution says as much. India follows constitutional supremacy as opposed to parliamentary supremacy. This means the parliament cannot deliberately undermine judicial independence in a similar manner that Israel attempted in 2023.

While I share your confusion about the content in Union List, I suspect it does not tell you the full story of the Indian constitution. In short, there are probably provisions scattered around the constitution which explicitly enshrines the court's ability to conduct judicial review, and so the Union List can only compliment, but not override, those provisions.

Note, the Indian constitution is the longest in the world, so most people would be forgiven to not be versed in the totality of its content, and how the provisions interact with each other.

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  • The way the Israeli people galvanised to strongly protest against the blatant attempt to grab power by Netanyahu, in the name of "judicial reform", was truly inspiring!
    – sfxedit
    Apr 13, 2023 at 3:45
  • what about the high court ? in the constitution the high court seems to have less powers overall. the words "the high court shall have supervience with respect to territories in which it excercises its jurisdiction" the jurisdiction seems to be controlled by the union , state or concurrent list
    – user45449
    Apr 23, 2023 at 5:41
  • @IndianLawDropout A quick search on High Courts of India suggests the High Court seems to enjoy similar power to conduct constitutional review as the Supreme Court. The only difference is that High Court can only review cases submitted from their assigned states, not India as a whole. Apr 23, 2023 at 5:55
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... the parliament has the power to make laws limiting the jurisdiction and powers of the Supreme Court. is this true?

No. The power of judicial review by courts are part of the "basic structure" of the constitution that the legislature is not allowed to curtail. In fact, some years back the Modi government tried to do this and amended the constitution to create the National Judicial Appointments Commission (NJAC) that would be responsible for the recruitment, appointment and transfer of judges, officers and other employees in the legal services. It also passed an act called the National Judicial Appointments Commissions Act to regulate the functions of the NJAC.

A constitution bench in a 4:1 majority judgement struck down the NJAC as unconstitutional:

“It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive ... The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” Justice J.S. Khehar, the presiding judge on the five-judge Constitution Bench, explained in his individual judgment. - SC Bench strikes down NJAC Act as ‘unconstitutional and void’

The heart of this judgement is based on the fact that India is a constitutional democracy, and not a majoritarian democracy. To prevent a majoritarian democracy, that would allow those elected in power to do as they please, the Indian constitution (as many others) prescribes an independent judiciary:

The Constitution gives the broad framework - flexible as it may be - within which our nation must navigate. Even the Constitution can be amended within this framework. However, the ‘basic structure’ is the lodestar that gives the direction towards which we must continually steer ... The power accorded to Parliament to amend any “provision” of the Constitution can never encompass the power to destroy the entire fabric of that very Constitution. It necessarily follows that the power to amend can never be utilized to destroy, for example, democracy itself, which is a basic feature of the Constitution, even if backed by the requisite Parliamentary majority.

... The NJAC was struck down as it made inroads into the independence of the judiciary, and protection of this independence is indeed fundamental to democracy. Repeated public statements by elected representatives negating the power of the Supreme Court to judicially review Constitutional amendments, is itself subversive of the rule of law.

The power of judicial review is inalienable to democracy and to rule of law itself. It is for this reason that the power of judicial review and the independence of judiciary have been held to be part of basic structure of the Constitution. Without the power of judicial review by a fiercely independent judiciary, democracy itself will be a mere writing on water, at the mercy of a powerful state.

Source: Will Of The People; India A Constitutional Democracy Not A Majoritarian Democracy

(Note that India has one of the most powerful judiciary among democracies because its powers of judicial reviews are much larger in scope than what other judiciaries enjoy. And it is the only judiciary in the world that appoints its own judges, without giving a prominent role to the executive in the process, to preserve its independence.).

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  • Note that India has one of the most powerful judiciary in among democracies because its powers of judicial reviews are much larger in scope than what other judiciaries enjoy. Mostly true. And it is the only judiciary in the world that appoints its own judges, without giving a prominent role to the executive in the process, to preserve its independence. Mostly not true. There are many other judiciaries in which the executive branch role in appointing judges is very modest.
    – ohwilleke
    Mar 13, 2023 at 21:24
  • @ohwilleke Do share more - if I am wrong, I'd like to correct that statement. I am not aware of any other judiciary in the world where neither the executive nor the legislature have any say in the appointment of judges. The US has a system where some judges are elected, but many others are still appointed by the politicians.
    – sfxedit
    Mar 14, 2023 at 0:31
  • For example, in France, judges are appointed by the High Council of the Judiciary (exclusively from graduates of the national judicial school, with higher court judges chosen from the ranks of lower court judges) in which which three quarters of the sixteen members are judges and 4 are appointed jointly by the President of the Republic, the President of the National Assembly, the President of the Senate and the General Assembly of the Council of the State (with appointments it recommends rubber stamped by the President). justice.gouv.fr/art_pix/french_legal_system.pdf
    – ohwilleke
    Mar 14, 2023 at 2:04
  • The Judicial Appointments Commission (since 2006) in England and Wales and a few broader jurisdiction courts, while having only a minority of judge members is non-partisan. judiciary.uk/judicial-appointments-commission
    – ohwilleke
    Mar 14, 2023 at 2:09
  • "In Colombia, supreme court justices are chosen by members of the court, from a list of candidates provided by the Consejo Superior de la Judicatura. Although many judges of Colombia's lower courts enter the judiciary by way of competitive examination, de facto many judges are named on an interim basis by their peers and remain in that status for years." judiciariesworldwide.fjc.gov/judicial-selection
    – ohwilleke
    Mar 14, 2023 at 2:15

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