Matters that count: On criticisms of the Supreme Court

The Supreme Court of India has been subjected to unfounded criticism by sections of the ruling BJP, and Vice-President Jagdeep Dhankhar, with regard to the separation of powers between the various branches of the government, and the principle of checks and balances. Not surprisingly, a Supreme Court bench took note of the charge that it was intruding into executive and legislative functions. In one petition, the Court was urged to direct the Centre to act under Articles 355 and 356 to deal with the situation of violence in West Bengal. In another, the Court’s intervention was sought to curtail obscene content on online platforms. The Calcutta High Court had earlier ordered the deployment of Central forces to stem violence in Murshidabad in West Bengal. Judicial review of legislative and executive decisions is an integral part of India’s constitutional democracy. Decisions of the executive and the legislature can be examined by the judiciary to determine whether they are consistent with the Constitution, and even constitutional amendments are subject to the ‘basic structure’ test. There are multiple constitutional avenues for judicial intervention in the making and enforcement of law. Article 13 gives the judiciary the power to strike down laws that are violating fundamental rights. Articles 32 and 226 give the Supreme Court and High Courts, respectively, the power to issue writs for the enforcement of fundamental rights, and beyond.

The notion that the judiciary is subservient to legislature is out of line with the constitutional scheme. In fact, the judiciary is expected to insulate the rule of law from the pressure of public opinion that members of the legislature represent. It is in this constructive friction between various institutions of the state that a society can achieve stability in governance. The argument that legislatures can pass any law on the basis of a majority is a majoritarian argument. The erasure of the distinction between the executive and legislature has already created a crisis of accountability in governance at the national and State level in India. The attempt to intimidate the judiciary in the name of legislative supremacy is a threat to democracy — not its furtherance. In the recent judgment that set timelines for the Governor and President for acting on laws passed by the Assembly, the Supreme Court restored the authority of the elected legislatures, which was being trampled upon by an unelected Governor and arbitrary actions by the President. The critics of the judiciary miss this point altogether.