Democracy cannot function with judicial review not being there, it is an essential component of the constitution: – Shri KK Venugopal, Attorney General for India


-Pradosh Shetty

After the grand success of “Dattopant Thengadi Lecture Series”, Akhil Bharatiya Adhivakta Parishad (ABAP) announced the commencement of its new online lecture series in the name of an eminent jurist and academician, Prof. N.R. Madhava Menon and the opening lecture of the series was delivered by Shri KK Venugopal (Attorney General for India and Senior Advocate) on “Contours of Judicial Review”

The Attorney General for India is known for not mincing words while talking about the judiciary and how it chooses to operate out of its constitutional purview, and contrary to its finding in various precedents. He, therefore, started his observation by noting, “Supreme Court has done a tremendous amount of work. It has practically tried to wipe away tears from the eyes of the poor… At the same time, it has, in many cases, according to me, exercised powers which can never be termed as judicial adjudication or even within the bounds of judicial activism.”

Mr. Venugopal then began tracing the confrontations of the judiciary with the other branches like the executive and the legislature dating back to the 1950s when the said the government chose to strike down land reform laws on a “strict and liberal interpretation of the constitution”.

He referred to how the Golaknath Case acts as a cornerstone for judicial review and noted the observations made in it, that article 368 of the Indian Constitution cannot be used for amending the constitution. So, when the parliament made certain amendments, it looked as if the court had bowed down to the whims of the parliament.

However, in 1973, a 13-judge bench judgment, with 7-6 Majority in Kesavananda Bharati case, declared that the basic structure is immutable and if amendments are made to the constitution which sought to cripple the basic structure, the court would have no choice but to intervene and strike down the said amendment.

He then went on to mention how Alexander Bickel had described the Supreme court of the USA as the least dangerous branch. However, in Ld. Attorney General’s opinion, he would describe the Indian Supreme Court as “the most powerful branch as they can sit in judgments for the other two branches and have the power to strike down their laws and directions.”

Mr. Venugopal mentioned that the source of vast powers of judicial review was Articles 32, 142, and 226 of the Indian Constitution and further reflected upon the present status of Public Interest Litigation (PIL) in India. He remarked, “Today we find, during the time of COVID-19, the cases that are filed, I mean.. transport all the migrants from one part of the country to another. Unless you have an Aladdin’s lamp and rub it, you cannot suddenly transport. Is it not part of policymaking? … One’s heart is pained at the fate (of the migrants) but the Government is doing whatever is necessary for that purpose.”

He noted that there is a need for the judiciary to exercise restraint, and the concept of constitutional morality which is being used as the new go-to weapon in the armoury of judicial review, should be relooked into. He remarked that Sabarimala case acts as a perfect example where two different judges (J. Chandrachud and J. Indu Malhotra) had concluded with two different views using the same tool of “Constitutional Morality”.

Whilst a question was asked in the context of the trend, whether the idea of Judicial Activism promotes the idea of “Anti-Democracy”. He quipped; “Democracy cannot function with judicial review not being there, it is an essential component of the constitution”.

He went on to add that in separation of powers, which play an important role, none of the branches are more powerful than the other. However, the judiciary is the final interpreter of the constitution and in practice, the power given to them is to test the validity of the law created by the parliament.

Whilst talking about the Judges not being elected persons, he remarked that irrespective of that notion“the quality, integrity, and knowledge should be of the highest quality for the judges at the Supreme Court.”

Mr. Venugopal concluded the lecture noting that “the Bar Council of India should ensure that all law schools in India should be at par with the National Law Schools when it comes to quality and opportunities.”

Mr. Purushaindra Kaurav, the Advocate General of Madhya Pradesh, after the completion of the lecture, tweeted; “Adhivakta Parishad has taken a very useful initiative of online lectures by eminent speakers in the field of law. Today we must hear the highest law officer of the country i.e. Shri K.K Venugopal who is the direct or indirect mentor of many of us like me.”

This demonstrates how Mr. KK. Venugopal has unequivocally touched upon the lives of every lawyer in the country with his nuanced knowledge and contribution to the field of law with his top-notch courtcraft techniques.

This being a lecture series dedicated to Prof. N.R. Madhava Menon, Prof Anirban Mazumder & Prof Shameek Sen of NUJS Kolkata, who had the good fortune of working with Prof. NR Madhava Menon and having been his students, made these thoughtful & heartfelt comments about their mentor during the lecture.

“While Prof. Menon’s most significant contribution has been universally acknowledged to be towards the reformation of legal education and its pedagogy, I will humbly like to flag his most telling contribution to my own life. Having been his student, I have had the privilege of learning my greatest life lesson, “Think like a lawyer, speak like a lawyer”. When the entire world is getting devoured and swayed by the scourge of misinformation and the systematic loss of analytical abilities and critical thinking is conjuring them into believing in the hyper-real and the componential, Prof. Menon’s prophetic words find a constant resonance inside me. As an academic, I definitely try to keep THAT flame of independent thinking alive in me.” – Prof. Shameek Sen, WBNUJS.

“Prof. Menon was an institution in himself, he single-handedly changed the landscape of legal education in India. Whatever little NUJS has achieved, undoubtedly, the credit goes to him” – Prof. Anirban Majumdar, NUJS

The entire lecture can be viewed on YouTube here-



(Pradosh Shetty is a 5th year Law Student at Symbiosis Law School, Hyderabad. He tweets at @Pradosh_Shetty)

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