Does India have judicial despotism?

• The term ‘judicial review’ is not explicitly mentioned in the Indian constitution but can be inferred from Article 13, which states any law in contravention of the constitution is void.

• Judicial review is an essential component of the rule of law and is part of the constitution’s basic structure.

• The Supreme Court has revolutionized the doctrine of locus standi and initiated Public Interest Litigation to overcome legitimacy crises.

• Questions arise about the Supreme Court’s accountability and its role in civil or religious war.

• The court’s misuse of powers under Article 142, which provides for “complete justice,” is questioned.

• The Supreme Court has not misused its powers under Article 142, living up to people’s expectations and not betraying their trust.

• The Vice-President of India, who is familiar with the Supreme Court’s contributions, should avoid using this power too often.

• The democracy debate is a significant point of contention, with opposition criticizing the Vice-President but also highlighting the Constitution’s sovereignty.

• Critics argue that unelected judges should not have the power to quash laws passed by democratically elected governments.

• Most scholars reject this democratic objection in cases of judicial review on federal provisions, legislative procedure, or fundamental rights.

• The Vice-President should not assert the supremacy of the Parliament, as democracy can be the best means of resolving political disputes except in issues of fundamental rights and preservation of constitutional supremacy.

Judiciary vs Government in India: A Personal Perspective

• The Supreme Court generally upholds government decisions and laws enacted by the Legislature.

• The court has a constitutional duty to speak against misgovernment and uphold people’s rights.

• Critics argue that the court is making laws, which is an unfair criticism.

• During the Modi government, the Supreme Court has generally supported the government, upholding demonetisation, refusing to recognize same-sex marriages, and approving the Rafale deal.

• The court has made bail conditions more stringent under the Unlawful Activities (Prevention) Act and has not granted bail to student leaders for over five years.

• The court has not heard petitions against Electronic Voting Machines (EVM) and the Citizenship (Amendment) Act, 2019.

• The court has interpreted the expression ‘as soon as possible’ in Article 200 in a recent verdict on Tamil Nadu Government’s petition against its Governor.

• The current CJI has not given any significant judgment, merely observing the Places of Worship Act.

• All three organs of the government must remain within their allotted spheres.

• The court cannot supplant substantive law or make any order inconsistent with the constitution or statutory law.

• The constitutional fiction of political questions beyond judicial remit cannot tie the hands of judges in exceptional situations like the one in Tamil Nadu.

• The President’s assent under Article 254(2) is an exercise of constitutional power and her actions are amenable to judicial review.