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(ix) To determine what constitutes the basic structure of the Constitution and whether an Act is in violation of the basic structure, every case has to be independently viewed. In several other enactments, appeals are directly provided to the Supreme Court leading to the exclusion of judicial review under Articles 226 or 227 of the Constitution;

(x) A workable solution to maintain the jurisdiction of the High Court under Article 226 would be that :

(a) the validity of the Armed Forces Act, 2007 is open to challenge under Article 226;

"...Courts, however, have to test the legality of laws, whether they purport to be ordinary or constitutional, by the norms laid down in the Constitution; separation of powers and supremacy of the Constitution are parts of the ''basic structure' of the Constitution14. (emphasis supplied).

While dealing with the submission that judicial review is a part of the basic structure of the Constitution, Justice Y V Chandrachud noted that the fundamental premise of the argument was too broadly stated because the Constitution, as originally enacted, expressly excluded judicial review in a large variety of important matters. Many among them were Articles 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a). Moreover, by Article 103(1), the Constitution bestowed jurisdiction on the President to determine any question arising under Article 102 regarding disqualification of a Member of Parliament. Judicial review was held not to form part of the basic structure in relation to elections to the legislatures. Hence, the judgment evaluated the position of judicial review in the case of electoral disputes and held that in those disputes, exclusion did not offend the basic feature. In that context, it was held as follows:

"...For determining whether a particular feature of the Constitution is a part of its basic structure, one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of country's governance. ..

Judicial review, according to Shri Shanti Bhushan, is a part of the basic structure of the Constitution and since the Thirty-ninth Amendment by Article 329A (4) and (5) deprives the courts, including the Supreme Court, of their power to adjudicate upon the disputed election, the amendment is unconstitutional. The fundamental premise of this argument is too broadly stated because the Constitution, as originally enacted, expressly excluded judicial review in a large variety of important matters. Articles 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a) are some of the instances in point. True, that each of these provisions has a purpose behind it but these provisions show that the Constitution did not regard judicial review as an indispensable measure of the legality or propriety of every determination. Article 136(2) expressly took away the power of the Supreme Court to grant special leave to appeal from the decisions of any court or tribunal constituted by a law relating to the armed forces. Article 262(2) authorized the Parliament to make a law providing that the Supreme Court or any other court shall have no jurisdiction over certain river disputes. But what is even more to the point are the provisions contained in Articles 103(1) and 329(b). Article 102 prescribes disqualifications for membership of the Parliament. By Article 103(1), any question arising under Article 102 as to whether a Member of the Parliament has become subject to any disqualification has to be referred to the President whose decisions is final. The President is required by Article 103(2) to obtain the opinion of the Election Commission and act according to its opinion. Thus, in a vital matter pertaining to the election for membership of the Parliament, the framers of the Constitution had left the decision to the judgment of the Executive. Articles 327 and 328 give power to the Parliament and the State Legislatures to provide by law for all matters relating to elections to the respective Legislatures, including the preparation of electoral rolls and the delimitation of constituencies. By Article 329(a), the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be called in question in any court.

Justice Bhagwati was in agreement with the majority on the issue of the validity of clauses (4) and (5) of Article 368. However, insofar as the validity of Article 31C was concerned, unlike the majority, His Lordship held that the amended Article was constitutionally valid. In regard to the power of judicial review, Justice Bhagwati held as follows:

"...The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law". The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution...17." (emphasis supplied).