Is India watching judicial autocracy?

The term ‘judicial review’ is not used in our constitution, but it can easily be estimated from Article 13, which says any law in violation of the Constitution will be zero. In fact, even this provision was abundantly inserted, because even in its absence, such power could be used by constitutional courts. Look at the violation of the High Court under Article 226 and the Supreme Court rights under Article 32.

A compulsory component of the rule of the judicial review law is part of the basic structure of our Constitution. Although ‘judicial activism’ and ‘judicial review’ are considered different, both are basically two sides of the same coin. In fact, judicial CT must ideally be blown into extreme conditions for a limited purpose, as the judiciary has no business to take the country’s rule into its own hands.

During the Emergency, the Supreme Court revolutionized the principle to overcome the crisis of validity for the government’s decisions during the Emergency locus standi And started public interest litigation. However, has the Supreme Court actually become an nuclear missile, whose judges have no accountability? Are we in the midst of civil or religious war and Justice Sanjeev Khanna, in his small tenure as Chief Justice of India (CJI), is to be convicted for this? Is the judicial review anti -democratic?

Has the court misused its powers under Article 142 (which provides “full justice”)? This does not ask the petitioners more what their rights have been violated, but whose rights have been violated. In this process, it has helped the prisoners who became blind by needles, being pierced in their eyes; Compensation to maintain custodial deaths and workers’ rights etc.

Case for full justice

In the argument of the Constitutional Law, always loves and hate judicial reviews. Many times, they depend on whether they are in the government or opposition. Thus, when the leaders of the Congress were in power, they were against judicial review, but today it is the strongest voter. However, Article 142 is very strong for the word as a nuclear missile and is originally criticized by the Constitution and should be avoided by the vice president of India, who himself is a senior advocate to be familiar with the Supreme Court’s seminal contribution in saving our democracy. The provision was used in Babri judgment, issuing guidelines on crowd lynching and divorcing in unsuccessful marriages based on ‘unbreakable breakdown’. True, the court should not use this power frequently.

The Supreme Court has neither used judicial activism nor has its constitutional power under Article 142 as an uncontrolled missile. In this, as a storehouse of people’s faith, it meets their expectations, except for some exceptions and does not cheat their faith. If the court had ordered the restoration of the Babri Masjid, there would have been a situation of religious war, but given the feelings of millions of people, the court liked peace on justice.

Similarly, a decision against the cancellation of Article 370 may have created a law and order situation in Kashmir. Article 370’s provision of CJI Sanjeev Khanna’s interpretation has been severely criticized and the refusal of the court was not preferred by constitutional law experts to determine the constitutionality of the downed state in the constitutional region of a state.

Debate of democracy

True, the opposition is within his right to criticize the vice -president, but he should remember his highest leader, Pandit Jawaharlal Nehru, spoke in an almost equal language in the constituent assembly on September 10, 1949, “There can be no judges within the boundary and no Supreme Court can do justice and no one can do justice, but no one can do justice, but in the final analysis, there is no one in the final analysis, where there is no one in the final analysis, where there is no future, where there is no future, where there is no jurisdiction, where there is no future. Is.

He proceeded to consider the possibility of taking pro -government judges: “If the courts prove to be inhibitors, there is a method of controlling the obstruction … Executive who is the appointment authority of judges, begins to appoint judges of their choice to take their own decisions.” As a strong Prime Minister, his daughter had a full impact by adding this policy to the judges’ ordinance twice. It is a different story that the collegium also regularly indulges in supersation in the name of diversity and merit.

The biggest criticism against judicial review is in the name of democracy, as unequal judges should not ideally have the power to reduce the laws passed by democratically elected governments. Of course, the government will be formed on the basis of majority in the popular House, yet the Constitution does not allow it to become prominent. Similarly, the Governor or the President cannot arbitrarily exercise their discretionary powers in accepting bills as they should also respect the will of democratically elected state assemblies.

In fact, most scholars reject this democratic objection in cases of judicial review on questions related to federal provisions, legislative process or fundamental rights, as democracy can be the best means to solve political disputes, except for issues of fundamental rights and conservation of constitutional supremacy. Unlike the United Kingdom, we do not have the dominance of Parliament, but the dominance of the Constitution. Our MPs should keep this in mind. The Vice President should also not claim the dominance of Parliament.

Judiciary vs government

Generally, the Supreme Court implements the decisions of the government and laws enacted by the Legislature. The fragmentation of laws or reducing government decisions occurs once in the blue moon. It is the duty of the Supreme Court to speak against the misunderstanding; If it fails to do so, it will fail in its constitutional duties to protect the Constitution and maintain the rights of the people.

To say that Parliament should be closed because the court is making a law itself, it is also an inappropriate criticism. As a matter of fact, recently, liberals have been saying that our judiciary has become more executive-mind than executive. In most cases during the Modi government, the Supreme Court has gone with the government. This retained demonetisation; This refused to recognize the same sex marriage; This approved the Rafale deal; The BJP-Shiv Sena (S) government in Maharashtra saved the government; Emphasized the national register of citizens for Assam; Paigasus did almost nothing in the surveillance case; ‘Triple Talak’ was declared zero; Independently used seal cover; CBI did not even agree to an inquiry into Judge Loya’s death; Under the Unlawful Activities (Prevention) Act and for five years, the conditions of bail were made more rigid, not even bail to student leaders; The petitions against the Electronic Voting Machies (EVMs) and the Citizenship (Amendment) Act, 2019 were not heard.

The only major failures for the government were in matters against the President’s rule in the Election Bond Scheme, the National Judicial Appointments Commission (NJAC), and Arunachal Pradesh. In a recent judgment on the Tamil Nadu government’s plea against its Governor, the court has explained the expression ‘as soon as possible’ in Article 200. The only problematic part that can qualify as a judicial activism, suggests the President to seek the opinion of the court that if a state law looks inconsistently unconstitutional; The court has said that “it will be prudent” (paragraph 434). This was also to save the President from prejudice, arbitrary and allegations of Garland fid,

Need fair criticism

Let us be fair for our judges. Fair criticism is welcome, but to blame for judges or to blame them either is not acceptable to violate the isolation of powers or civil war. Our judges deserve the honor as they have a lot of work due to poor judges-public ratio. The current CJI has not given any important decision. Informed of religious sensitivity, he only tried to maintain peace through his comments at places of the Puja Act. The Waqf (Amendment) Act, 2025 also has no migration so far. Can he not even ask questions now?

All three organs of the government should live within their allotted areas. The holders of these organs take an oath to bear the true faith and loyalty towards the constitution. A governor who refuses to sign the bills passes together by the assembly, originally in violation of his oath.

In the Supreme Court Bar Association (1998), the Supreme Court noted that the powers under Article 142 do not authorize the court to suppress the original law due to being curative. It cannot build a new editing where no one was present earlier. It cannot give any order that is incompatible with the Constitution or legal law. The decision in the Tamil Nadu government trial has strengthened, not weak, democracy and federalism. Justice JB Pardwala has not gone against any provision of the Constitution. He has actually saved the constitution from the autocracy of unrelated governors and prevented the governors from becoming a “super constitutional figure” (paragraph 317).

Justice Krishna Iyer In Maru Ram vs India’s Union (1981) said that “no legal power can run uncontrolled on the horse like John Gilpin, but should be kept wisely in a stable course”. He also saw that no constitutional power can be porn by the personal pride of men in authority.

The constitutional story of political questions beyond the judicial remit cannot bind the hands of judges in the same extraordinary situations in Tamil Nadu. Its governor’s action is being found Garland fid This type of deadline. The deadline suggested by the court is not for the amendment of the constitution. In future, no court is starting contempt proceedings against the President or even governors, which strictly comply with these deadlines. If there is an inappropriate delay without any reason, the deadline can be used to evaluate the arbitrary or non-arbitrary nature of the governor’s action/inaction.

In Qaisar e Hind It is a practice of constitutional power. The Indian President is also under the Constitution and not above it. His work is also responsible for judicial review. Even the Supreme Court is not supreme despite its naming; It should also work within and within constitutional boundaries.

The author is the Vice Chancellor Chankya National Law University, Patna. Thoughts are personal.