Judicial Supremacy and the Erosion of Legislative Sovereignty: A Constitutional Reckoning
An Examination of the Supreme Court's Expanding Powers in Light of the Indian Constitution
Introduction
The Indian Constitution envisions a structure of governance that is delicately balanced between the legislature, the executive, and the judiciary. This separation of powers, coupled with a robust checks and balances system, is central to the idea of democratic functioning. Over the decades, the Indian judiciary has come to play a pivotal role in maintaining constitutional morality, protecting fundamental rights, and checking legislative and executive excesses.
However, in recent times, this balance appears to be under strain. Three pivotal developments have reignited national debate over the expanding powers of the judiciary:
The Supreme Court’s assertion that its directions are binding even on constitutional authorities such as the President and Governors raises questions about the extent of judicial reach.
The striking down of the NJAC (National Judicial Appointments Commission) — a constitutional amendment passed with overwhelming parliamentary and state support — on the grounds of judicial independence as a component of the basic structure.
A troubling incident involving a heap of burnt currency notes found in the residence of a sitting judge of the Allahabad High Court, which was met not with criminal prosecution or suspension, but a silent transfer and a vague internal inquiry, without an FIR or public report.
These events collectively sharpen the constitutional debate around judicial overreach, unaccountable power, and the potential bypassing of legislative supremacy.
This article explores in detail the constitutional boundaries of the judiciary, the original intention behind Article 124 and Article 142, and whether the Supreme Court's current practices amount to a re-engineering of the Constitution, contrary to its basic structure. The constitutional boundaries of the judiciary, the original intention behind Article 124 and Article 142, and whether the Supreme Court's current practices amount to a re-engineering of the Constitution, contrary to its basic structure.
Supremacy of the Constitution, Not the Supreme Court
A core tenet of the Indian Republic is that the Constitution is supreme, not any organ of the State, including the Supreme Court. Every institution, whether legislative, executive, or judicial, derives its powers from the Constitution and remains bound by its principles. The judiciary is not above the Constitution; it is one of its interpreters and custodians.
In a parliamentary democracy, sovereignty ultimately lies with the people, whose will is expressed through their elected representatives — the Parliament and the State Legislatures. The executive, headed by the Prime Minister and the President, functions under the broad mandate of this democratic will. Governors represent the constitutional authority at the state level.
The recent assertion that Supreme Court orders are binding even on the President and Governors challenges this delicate framework. It raises a pressing constitutional question:
How can a judge, appointed by the President under Article 124(2), assert unqualified authority over the very constitutional authority that appointed them?
While Article 144 requires all civil and judicial authorities to act in aid of the Supreme Court, this does not translate into judicial supremacy over other constitutional functionaries.
The President of India, as the constitutional head of the Union, and the Governors, as representatives of the sovereign in the states, enjoy dignity and functions that are not subordinate to the judiciary. Their actions are subject to constitutional procedures, not to open-ended judicial directives beyond the bounds of law.
Any suggestion that the judiciary can command its own appointer not only contradicts the principle of constitutional hierarchy, but also undermines the spirit of democratic accountability.
Respecting the roles of the President, Prime Minister, and Governors is not just ceremonial; it is essential to maintaining the constitutional balance. The judiciary must act as a constitutional sentinel, not a political or administrative overseer.
The Foundation: Checks and Balances over the Supreme Court
Although the Supreme Court of India is the apex judicial body, it is not infallible or immune from the constitutional scheme of accountability. It is subject to various checks and balances, albeit not through hierarchical oversight.
Constitutional Boundaries: The Supreme Court derives its authority from the Constitution and is bound by its provisions. It cannot override the Constitution or legislate from the bench.
Parliamentary Oversight:
Parliament has the power to amend laws and the Constitution (subject to the basic structure doctrine).
Judges can be impeached under Article 124(4) for proven misbehavior or incapacity, though this is rare and procedurally challenging.
Internal Checks:
The Court may review or correct its own decisions via review and curative petitions (Articles 137 and judicial innovations).
Bench diversity and dissenting opinions provide institutional self-correction mechanisms.
Public and Media Scrutiny:
Supreme Court decisions are routinely debated in the media, academia, and civil society, adding reputational checks on judicial conduct.
Executive Levers:
Judicial appointments are formally made by the President.
The judiciary depends on the executive for infrastructure and financial support.
However, in practice, several of these checks have proven weak or ineffective in the face of an assertive judiciary wielding its interpretative supremacy.
The Misappropriation of Article 13 and Article 142
Article 13 empowers the Court to strike down laws violating fundamental rights. When combined with the Basic Structure Doctrine (from Kesavananda Bharati, 1973), it became a formidable instrument of judicial review. While designed to check unconstitutional excess, it is now occasionally used to invalidate entire legislative frameworks (e.g., NJAC Act), raising serious questions about overreach.
Similarly, Article 142 empowers the Supreme Court to pass such orders as are necessary to do "complete justice" in any matter before it. Originally meant as an equitable gap-filler, it was designed to enable relief in exceptional cases where statutes may fall short. However, in recent years, this article has been used expansively, including to enforce socio-economic mandates, restructure institutions, and dictate policy frameworks — actions traditionally within the legislature or executive's purview.
The issue is not whether the ends are noble, but whether the means distort the Constitution’s original balance.
Article 124 and the Intent of the Constituent Assembly
The Collegium system that governs judicial appointments today is not mentioned anywhere in the Constitution. Article 124(2) merely states that judges shall be appointed by the President after "consultation" with such judges as he may deem necessary. The debates in the Constituent Assembly make it abundantly clear that:
The framers did not want a self-selecting judiciary.
They rejected proposals for judicial commissions or judicial vetoes.
They believed in a consultative process involving the President and the Chief Justice, with the final decision resting with the executive, under constitutional conventions.
Dr. B.R. Ambedkar said:
"There can be no difference of opinion in the House that our judiciary must be independent of the executive... but it must also be competent in itself."
K.T. Shah, a member of the Assembly, warned that mere consultation was too weak and prone to manipulation. But the Assembly chose consultation over concurrence, trusting in the wisdom and integrity of the constitutional offices.
Timeline: Judicial Drift from Constitutional Design
1950: Article 124 came into force; the executive held primacy in judicial appointments.
1981: First Judges Case upheld executive primacy.
1993: Second Judges Case reversed this, gave primacy to the judiciary - Collegium system created.
1998: The Third Judges Case expanded the Collegium to 5 judges.
2014: Parliament passed the NJAC Act to reform appointments.
2015: SC struck down NJAC, asserting that judicial independence is part of the basic structure.
Post-2015: Collegium system continues with mounting criticism over opacity and lack of accountability.
Thus, what was once a shared constitutional function between the executive and judiciary has been unilaterally appropriated by the judiciary.
The NJAC Verdict and the Basic Structure Doctrine
In 2014, the Parliament of India unanimously passed the Ninety-Ninth Constitutional Amendment Act, introducing the National Judicial Appointments Commission (NJAC) to replace the Collegium system. This reform was aimed at improving transparency, ensuring broader consultation, and curbing the judiciary's monopolistic control over appointments. The NJAC had wide support — passed by both Houses of Parliament with near unanimity and ratified by more than half of the state legislatures, as required under Article 368.
However, in a landmark and highly controversial ruling in 2015 — known as the Fourth Judges Case — the Supreme Court struck down the NJAC as unconstitutional. The Court ruled that the NJAC violated the Basic Structure of the Constitution, specifically the principle of judicial independence. The verdict reinstated the Collegium system.
The decision was met with sharp criticism for several reasons:
It nullified a constitutional amendment supported by the democratic will of the people’s representatives.
It reaffirmed judicial supremacy in appointments, rejecting even modest executive or civil participation.
The Court refused to consider that transparency and accountability are also integral to judicial independence.
Justice J.S. Khehar, writing for the majority, asserted that any compromise on judicial primacy would lead to the "death knell of democracy."
However, critics argued that:
The ruling was an example of the judiciary protecting its own turf.
It contradicted the spirit of cooperative federalism and democratic reform.
The use of the Basic Structure Doctrine in this case amounted to a constitutional veto by the judiciary over the collective wisdom of Parliament and the States.
This case marks a pivotal moment in Indian constitutional history. While the judiciary sought to preserve its independence, it also drew serious questions about self-preservation overriding reform and a lack of checks on judicial power.
This section is best placed after the paragraph titled "Timeline: Judicial Drift from Constitutional Design", as it naturally extends the narrative from the NJAC’s legislative passage to its judicial nullification.
The Fundamental Paradox: Protecting or Breaking the Basic Structure?
The Basic Structure Doctrine was intended to prevent Parliament from amending away core constitutional values. Ironically, it is now being used by the Supreme Court to justify powers it was never meant to have:
Judicial independence is part of the basic structure, but so is the separation of powers.
Judicial review is part of the basic structure, but so is legislative supremacy within constitutional bounds.
When judges appoint judges, review their own appointments, and invalidate constitutional amendments passed by a majority of Parliament and ratified by half the states, it raises a critical question: Who guards the guardians?
Vice President Jagdeep Dhankhar’s Warning
Vice President Jagdeep Dhankhar, in several public statements, called Article 142 "dangerous" when it is used to override the will of Parliament. He particularly referenced the NJAC case, where a constitutional amendment passed almost unanimously was invalidated by the Supreme Court.
His concern echoes a broader anxiety in legal circles: that the judiciary, in the name of independence and justice, may be overwriting the Constitution itself.
Conclusion: Time for Reform and Rebalancing
The Supreme Court of India is a revered institution. Its role in protecting rights, expanding freedoms, and ensuring justice is historic and essential. But no organ of the state is infallible or above the Constitution.
The Collegium system is a judicial creation, not a constitutional mandate.
The use of Article 142 and 13, while legitimate tools, is increasingly seen as legislating from the bench.
The intent of the framers was for the judiciary to be independent, but not unaccountable.
A healthy democracy requires a mutual respect between organs, not constitutional silos.
Recommendation:
Establish a reformed, transparent Judicial Appointments Commission that ensures judicial input without judicial monopoly.
Codify the boundaries of Article 142 to prevent misuse.
Revive the spirit of the Constituent Assembly, where checks and balances meant collaborative governance, not institutional turf wars.
If the judiciary becomes both the interpreter and the author of the Constitution, the very essence of constitutional democracy is at risk.
It is now time for lawmakers, jurists, and civil society to initiate a mature national debate to restore balance, transparency, and fidelity to the Constitution of India.
References and Citations
Constituent Assembly Debates, Vol. VIII, 24 May 1949, Speeches by Dr. B.R. Ambedkar, K.T. Shah, Shibban Lal Saksena
Constitution of India, Articles 124, 13, 142, 32, 226, 74
S.P. Gupta v. Union of India, AIR 1982 SC 149 (First Judges Case)
Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268 (Second Judges Case)
In re Special Reference No. 1 of 1998, AIR 1999 SC 1 (Third Judges Case)
Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 (Fourth Judges Case/NJAC Verdict)
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (Basic Structure Doctrine)
Constituent Assembly Debates, Book 2: Article 103 Drafting (Now Article 124)
Public Addresses of Vice President Jagdeep Dhankhar, Rajya Sabha TV, 2022-2023
Law Commission of India Reports (Various), especially those discussing Judicial Reforms and Appointments
Appendix 1: Judicial Inactiveness and Partiality – A Case from the Allahabad High Court
In a deeply troubling incident that shook public confidence, a heap of burnt currency notes was discovered in the residence of a sitting judge of the Allahabad High Court. Instead of invoking the due process of law, including immediate suspension, an FIR, and judicial accountability mechanisms, the incident was dealt with through a mere administrative transfer. The judge in question was neither suspended nor subjected to any criminal prosecution. No First Information Report (FIR) was filed, and no disciplinary action was made public.
Only an internal inquiry was initiated, the report of which remains undisclosed. Meanwhile, the judge has continued to enjoy the privileges of office.
This incident highlights a serious malaise within the judicial system:
Lack of transparency and accountability in dealing with internal misconduct.
Double standards compared to how civil servants or politicians are treated in similar circumstances.
Erosion of public trust in the judiciary's ability to police itself.
Such episodes raise profound concerns about the inherent bias in judicial self-regulation and the absence of external oversight. The judiciary cannot claim moral and constitutional superiority if it is unwilling to subject itself to the very standards it demands from other pillars of democracy.
Justice must not only be done, but must also be seen to be done — and when judges appear to be shielded from scrutiny, the very essence of the rule of law is weakened.
This case underscores the need for:
An independent judicial oversight body.
Mandatory public disclosure of internal inquiries involving judicial misconduct.
A transparent and enforceable judicial code of conduct, binding even post-retirement.
If the judiciary continues to protect its own members from lawful scrutiny, it risks undermining the very Constitution it is sworn to uphold.
Appendix 2: Judicial Appointment Systems in Other Democracies
United States (U.S.):
Judges, including those to the Supreme Court, are nominated by the President and confirmed by a majority vote in the Senate.
There is a rigorous public hearing process, often televised.
The system is designed to reflect checks and balances between the executive and legislature.
United Kingdom (U.K.):
Judges are selected through the Judicial Appointments Commission (JAC), an independent body.
The JAC includes legal professionals and laypersons.
The Lord Chancellor may reject a candidate but must provide valid reasons.
Appointments are transparent and follow a merit-based recruitment process.
Canada:
Judges are appointed by the Prime Minister.
An advisory board, introduced in 2016, reviews applications and makes non-binding recommendations.
There is no parliamentary confirmation, but some public scrutiny exists.
Australia:
Judges are appointed by the Governor-General on advice from the Attorney-General.
There is no parliamentary confirmation, but consultations with state legal bodies and bars are routine.
Germany:
Judges of the Federal Constitutional Court are elected: half by the Bundestag (lower house) and half by the Bundesrat (upper house).
This ensures a federal and balanced representation.
France:
Appointments are made by the President, based on advice from the High Council for the Judiciary.
South Africa:
The Judicial Service Commission (JSC) recommends judges to the President.
The JSC includes judges, lawyers, academics, and members of Parliament, ensuring broad representation.
Summary: Most democratic countries follow either a merit-based independent commission system or an executive-legislative cooperative model.
None employ a self-perpetuating Collegium system like India, where judges appoint judges with minimal or no external oversight.
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