Make a distinction between judicial review and judicial power. Explain the scope of judicial review with reference to the cases arising under the Xth Schedule of the Constitution.

Defining Judicial Review and Judicial Power

Judicial Power encompasses the general authority of courts to hear and decide cases, interpret laws, and administer justice. It is inherent in the structure of a judicial system and essential for resolving disputes. Article 124-147 of the Constitution deals with the organization of the judiciary.

Judicial Review, however, is a specific power derived from the Constitution, enabling the judiciary to assess the constitutionality of legislative and executive actions. It is not explicitly mentioned but is implied through provisions like Part III (Fundamental Rights), Article 13 (laws inconsistent with fundamental rights are void), and Article 368 (amendment procedure). It’s a check on the other branches, preventing them from acting beyond their constitutional limits.

Scope of Judicial Review

The scope of judicial review is not unlimited. It's subject to certain constraints:

• Constitutional Amendment: While judicial review can examine constitutional amendments, it's limited by Article 368, which defines the amendment process.
• Doctrine of Basic Structure: Established in Kesavananda Bharati v. State of Kerala (1973), this doctrine prevents the Parliament from amending provisions that form the basic structure of the Constitution.
• Political Questions: Courts generally avoid adjudicating matters that are inherently political in nature.

Judicial Review and the Tenth Schedule

The Tenth Schedule, inserted by the Constitution (Fifty-second Amendment) Act, 1991, aimed to provide stability to governments by preventing defections. However, its provisions have been challenged multiple times, leading to significant judicial pronouncements.

Key Cases and Their Impact

Case Name	Year	Key Issue & Outcome
Rameshwar Prasad v. Union of India	1996	Held that the power of the Speaker to decide on disqualification petitions under the Tenth Schedule is subject to judicial review. Established that while the Speaker's decision is binding, it must be based on a reasonable and fair procedure.
Lily Thomas v. Union of India	2013	Mandated that disqualified legislators should not be allowed to contest elections until their conviction is set aside. This aimed to curb criminalization of politics.
Mohanlal Sharma v. Union of India	2015	Clarified that a notice for disqualification under the Tenth Schedule must be decided within a reasonable time.

These cases demonstrate that while the judiciary recognizes the need for political stability, it also safeguards fundamental rights and principles of natural justice. The Speaker's power, though significant, is not absolute and is subject to judicial oversight. The Lily Thomas case, in particular, highlights the judiciary's role in ensuring ethical governance.

Limitations on Judicial Review of the Tenth Schedule

Despite the judicial scrutiny, certain aspects remain beyond the direct purview of judicial review. For instance, the question of whether a particular action constitutes 'defection' is largely a matter of interpretation by the Speaker, although subject to the principles established in Rameshwar Prasad.

In conclusion, judicial review and judicial power are distinct but interconnected concepts within the Indian legal system. The Tenth Schedule, designed to address political instability, has been a crucial testing ground for the scope of judicial review. Landmark judgments have clarified the boundaries of the Speaker’s power and reinforced the judiciary’s role in upholding constitutional principles and ensuring fairness. The evolving jurisprudence around the Tenth Schedule reflects the delicate balance between political stability and the rule of law.