Recent Supreme Court rulings, including on Article 370, Governor’s Bill assent powers, and judicial use of Article 142, have reignited debates over judicial overreach.

Judicial Review in India

• Constitutional Provision: The term ‘judicial review’ is not explicitly mentioned in the Indian Constitution but is inferred from Article 13.
• Article 13: Article 13 states that any law inconsistent with the Constitution is void, which implies the power of judicial review.
• Insertion: Judicial review was inserted to ensure the Constitution’s supremacy, although constitutional courts could have exercised this power even without its explicit mention.
• Significance: Judicial review is a key component of the rule of law and part of the basic structure of the Indian Constitution.
  • Though judicial activism and judicial review are distinct concepts, they are closely related; both are tools through which the judiciary safeguards constitutional rights.
• Criticism: Critics question whether judicial review has gone too far, with concerns about its accountability and its impact on governance.
• Debates: There are varying opinions on judicial review, with some supporting its necessity, while others critique its overreach.
  
• Opportunism: Political leaders often shift their stance on judicial review based on their position in government or the opposition, such as Congress leaders who were initially against judicial review but are now its proponents.
• Impartiality: Judicial review is not about undermining democracy but is meant to ensure that justice is delivered impartially.
• Balanced Approach: The Supreme Court’s judgments, such as in the Babri Masjid case and in guidelines on mob lynching, showcase its balanced approach to justice.
• Instrumental in Complex cases: Critics argue that Article 142 should be used sparingly, but it has been instrumental in addressing complex cases, such as irretrievable breakdown of marriages.
• Role of the Judiciary: The judiciary’s role has been particularly crucial in preventing potential civil or religious conflicts by considering the sentiments of the people, as seen in the Babri Masjid case.
  • The abrogation of Article 370 and the downgrading of Jammu and Kashmir to a Union Territory raised concerns about potential law and order issues in the region, leading to criticism of the court’s approach in handling such sensitive matters.
• General Role of the Supreme Court: The Supreme Court usually upholds government decisions and laws passed by the Legislature, intervening only in rare instances when laws or decisions violate the Constitution.

Judicial Activism and Its Criticism

• Origins: Judicial activism has been seen as essential in times of crises, like during the Emergency, when the Supreme Court introduced the Public Interest Litigation (PIL) to increase access to justice.
• Scrutiny of Article 142: The Supreme Court’s powers under Article 142 (for “complete justice”) have also come under scrutiny, with some arguing that it has misused this power in certain cases, such as compensating victims of custodial deaths and upholding workers’ rights.
• Views of VP: The Vice-President of India criticized Article 142, describing it as a “nuclear missile,” but such criticism is seen as undermining the constitution’s role in safeguarding democracy.
• Right to Critique: The Opposition is well within its rights to criticize the Vice-President, but their criticism should be viewed in the context of historical precedents.
• Criticism of the Judiciary: Critics argue that the judiciary has become too executive-minded, often siding with the government on major decisions. Examples include:
  
  • Upholding demonetisation and the Rafale deal.
  • Refusing to recognise same-sex marriages and not addressing the Pegasus surveillance issue.
  • Declining a CBI probe into Judge Loya’s death.
  • Upholding stringent bail conditions under the Unlawful Activities (Prevention) Act (UAPA).
  • Not hearing petitions against the Citizenship (Amendment) Act (CAA) or Electronic Voting Machines (EVMs).
• Setbacks for the Government: The Court’s major setbacks to the government were in cases involving the electoral bond scheme, the National Judicial Appointments Commission (NJAC), and President’s rule in Arunachal Pradesh.
• Tamil Nadu Case: The Tamil Nadu case involved the Court interpreting “as soon as possible” in Article 200 and suggested that the President seek the Court’s advisory opinion if a State law appeared unconstitutional. Critics see this as an example of judicial activism.

Nehru’s View on the Judiciary

• No Judiciary as a Third Chamber: During the Constituent Assembly debates on September 10, 1949, Pandit Jawaharlal Nehru stated that the judiciary should not function as a third chamber, overstepping the will of Parliament.
• Role of Judiciary: Nehru argued that while the judiciary could point out mistakes in the legislation, it should not block decisions that are pivotal for the future of the nation.
• Judicial Obstruction: Nehru discussed the possibility of appointing judges sympathetic to the government if the judiciary was seen as obstructive to the government’s decisions.
• Indira Gandhi’s Action: Nehru’s daughter, Indira Gandhi, acted on this by superseding judges to ensure the judiciary’s alignment with the government’s stance.

Objection to Judicial Review

• Criticism of Judicial Review: A primary criticism of judicial review is that unelected judges should not have the power to overturn laws enacted by a democratically elected government.
• Constitutional Supremacy: This objection stems from the tension between majoritarian democracy and constitutional supremacy. While a government is formed by the majority in the popular House, the Constitution ensures that decisions cannot be purely majoritarian.
• Governor and President’s Role: The discretionary powers vested in the Governor or President cannot be exercised arbitrarily. They are required to respect the will of democratically elected State Assemblies.
• Validity of the Objection: Scholars argue that the democratic objection to judicial review is not valid when dealing with fundamental rights, federal provisions, or legislative procedure. While democracy is suitable for political disputes, it cannot override the need for constitutional supremacy.
• India’s Constitutional Supremacy: Unlike the United Kingdom, where Parliamentary supremacy prevails, India’s Constitution holds supremacy. 
  • Therefore, Parliament and other democratic institutions are bound by the Constitution, and judicial review ensures that constitutional principles are upheld.

Need for Fair Criticism

• Fair Criticism of Judges: Fair criticism of judges is welcome, but attributing malicious motives or suggesting that the judiciary is undermining democracy is unjust. Judges deserve respect for their hard work, especially in a system with a poor judge-population ratio.
• Acknowledging the Current CJI’s Efforts: While the current Chief Justice of India (CJI) has not passed significant judgments, efforts to maintain peace through sensitive matters like the Places of Worship Act should be acknowledged.
• Separation of Powers: All three organs of government—the Executive, Legislature, and Judiciary—must remain within their constitutional bounds, as mandated by their oath of office.

Role of the Judiciary in Maintaining Democracy and Federalism

• Supreme Court Bar Association (1998) Judgment: The Supreme Court clarified that powers under Article 142 cannot be used to supersede existing laws. 
  • These powers are curative, not legislative, and cannot act in contradiction to statutory law or the Constitution.
• Preserving Democracy and Federalism: The Tamil Nadu case demonstrated how the Court can preserve democracy and federalism by preventing unelected Governors from acting as super-constitutional figures.
• Maru Ram v. Union of India (1981): Justice Krishna Iyer emphasized that constitutional powers must not be abused for personal gain or vanity and should remain within steady bounds.
  Political Doctrine: The political question doctrine, which often limits judicial involvement in certain matters, cannot be applied blindly when there is clear mala fide action by authorities, as in the Tamil Nadu case.
• Timelines Set by the Court: The timelines suggested by the Supreme Court for Governor actions do not constitute an amendment to the Constitution but serve to evaluate whether actions are arbitrary or non-arbitrary.
• Qaiser e Hind (2001): Justice Dorairajan observed that the assent of the President is a constitutional exercise of power and should not be treated as a mere formality.
• Judicial Review of the President’s Powers: The Indian President, like all other constitutional authorities, is subject to judicial review. No entity in India is above the Constitution, including the Supreme Court.

Conclusion

The Supreme Court, as the guardian of the Constitution, must exercise judicial review to ensure that no government authority acts unconstitutionally. At the same time, its actions must remain within the framework of the Constitution, ensuring that no organ of government oversteps its limits.

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