Why in the News?

Recently, a number of court rulings have led many people to question the powers and intentions of the Supreme Court. Although criticism of the judiciary is not new, it has increased.

What is the significance of judicial review in the Indian Constitution?

• Upholds Constitutional Supremacy: Judicial review ensures that all laws and actions by the government are in line with the Constitution. Eg: In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Parliament cannot alter the basic structure of the Constitution, reinforcing constitutional supremacy.
• Protects Fundamental Rights: It provides a mechanism for individuals to challenge laws or executive actions that violate their fundamental rights. Eg: In Maneka Gandhi v. Union of India (1978), the court ruled that the right to life and personal liberty under Article 21 cannot be violated without just, fair, and reasonable procedure.
• Maintains Checks and Balances: Judicial review prevents arbitrary use of power by the legislature or executive, maintaining the balance of power among the three branches of government. Eg: In Minerva Mills v. Union of India (1980), the court struck down parts of the 42nd Amendment that tried to limit the power of judicial review itself, preserving the judiciary’s role as a check on Parliament.

How is it related to Article 13?

• Declares Inconsistent Laws Void: Article 13(1) & (2) state that any law that violates Fundamental Rights is void to the extent of the violation. This empowers the judiciary to review and strike down such laws. Eg: In A.K. Gopalan v. State of Madras (1950), although the court upheld the Preventive Detention Act, the case established the judiciary’s power to examine laws under Article 13.
• Forms the Basis for Judicial Review: Article 13 acts as the foundation for judicial review by mandating that all laws (past and future) must conform to Fundamental Rights. Eg: In Kesavananda Bharati v. State of Kerala (1973), the court used Article 13 to assert that even constitutional amendments are subject to judicial review if they violate the basic structure or Fundamental Rights.
• Ensures Protection Against State Actions: Article 13 defines “law” to include ordinances, orders, bye-laws, rules, regulations, etc., thereby subjecting all state actions to judicial scrutiny. Eg: In State of West Bengal v. Committee for Protection of Democratic Rights (2010), the court affirmed that Article 13 covers all state actions, ensuring their consistency with Fundamental Rights.

How did the Supreme Court’s activism during the Emergency impact its role in protecting democracy?

• Judicial Abdication in the ADM Jabalpur Case: The Court failed to protect civil liberties by ruling that even the right to life could be suspended during the Emergency. Eg: ADM Jabalpur v. Shivkant Shukla (1976) – The majority held that citizens had no remedy if the state detained them illegally during Emergency, weakening democratic safeguards.
• Erosion of Public Faith in Judiciary: The decision in ADM Jabalpur was widely criticized and seen as the Court yielding to executive pressure, leading to a decline in public confidence. Eg: Justice H.R. Khanna’s lone dissent defending civil liberties became a symbol of judicial integrity, but the majority judgment damaged the Court’s image.
• Shift Towards Judicial Activism Post-Emergency: In response to its failure, the Court later adopted a more proactive role in defending rights through Public Interest Litigations (PILs). Eg: Maneka Gandhi v. Union of India (1978) – The Court expanded the scope of Article 21 (Right to Life and Personal Liberty), overturning its narrow view in earlier cases.
• Strengthening of Basic Structure Doctrine: After the Emergency, the judiciary reinforced its role as a guardian of the Constitution, making it clear that even Parliament cannot amend the basic structure. Eg: Minerva Mills v. Union of India (1980) – The Court reaffirmed that judicial review is a part of the basic structure and cannot be taken away.
• Restoration of Accountability and Civil Rights: The Court became more vigilant in ensuring that executive actions respect democratic principles and individual freedoms. Eg: The growth of PILs in the 1980s allowed the judiciary to directly address the grievances of the marginalized and hold the state accountable.

Why is the Supreme Court’s power under Article 142 considered essential?

• Ensures Complete Justice in Exceptional Situations: Article 142 empowers the Supreme Court to pass any decree or order necessary for doing “complete justice” in any case before it, even if no specific law exists. Eg: Union Carbide Case (Bhopal Gas Tragedy, 1989) – The Court invoked Article 142 to ensure compensation for victims, overriding procedural hurdles.
• Fills Legislative or Procedural Gaps Temporarily: It allows the Court to address legal voids until Parliament or the executive acts, ensuring justice is not delayed due to technicalities. Eg: Supreme Court guidelines on sexual harassment at workplaces (Vishaka v. State of Rajasthan, 1997) – The Court framed guidelines under Article 142 in absence of legislation.

What are the concerns surrounding its misuse?

• Overreach and Violation of Separation of Powers: There is a risk that the Court might overstep its boundaries, encroaching on the domain of the executive or legislature, thus undermining the principle of separation of powers.Eg: Judicial intervention in policy matters – If the Court starts making decisions on matters that should be left to the government, like executive policies, it can be seen as an overreach.
• Potential for Arbitrary Decisions: The broad discretion granted by Article 142 can sometimes lead to arbitrary decisions, which may not align with established legal principles or may be seen as politically motivated. Eg: Judgment in the Babri Masjid Case (2019) – The Court’s intervention in the Babri case was criticized for favoring peace over legal principles, potentially opening doors for biased interpretations.

How does the judiciary uphold the Constitution without overstepping the separation of powers between the legislature and the executive?

• Judicial Review with Restraint: The judiciary exercises judicial review carefully, ensuring it only intervenes in cases where constitutional violations or fundamental rights are at stake, and refrains from delving into policy decisions better left to the executive or legislature. Eg: Right to Privacy Case (2017) – The Supreme Court upheld the right to privacy as a fundamental right, checking executive overreach but refraining from interfering with legislative or executive policy decisions.
• Respect for Legislative and Executive Domains: The judiciary respects the roles and powers of the legislature and executive, ensuring that it does not encroach on their function while interpreting the law within its constitutional framework. Eg: Constitutionality of the GST (2017) – The Supreme Court reviewed the constitutional validity of the Goods and Services Tax (GST) but did not interfere with the operational execution, leaving implementation to the executive.

Way forward: 

• Ensure Judicial Independence: Strengthen mechanisms to safeguard the judiciary from executive and legislative influence, ensuring impartiality and constitutional integrity.
• Foster Collaborative Governance: Encourage constructive dialogue between the judiciary, legislature, and executive to maintain balance and prevent unnecessary judicial overreach.

Mains PYQ:

[UPSC 2015] Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly proactive role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy.

Linkage: In this article, evaluate judicial activism. Some people see it as essential for protecting the Constitution, while others think it goes too far, interfering with the roles of the legislature and executive, and might even lead to judges having too much power.

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