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The power of Indian courts to strike down executive overreach and unconstitutional laws faces an unprecedented stress test. Chief Justice Surya Kant recently reasserted that judicial review remains the cornerstone of India’s constitutional democracy, a vital mechanism ensuring that governance stays within legal bounds. However, a widening gap separates this noble philosophy from the gritty reality of modern Indian governance. While judicial review exists on paper as an unassailable shield for citizen rights, its practical application is increasingly choked by systemic delays, executive resistance, and strategic judicial evasion.
To understand why this matters, one must look at how the balance of power shifts when courts hesitate. Judicial review is not just a legal doctrine; it is the ultimate veto power vested in the judiciary to check the legislature and executive. When the judiciary delays decisions on critical constitutional challenges, it effectively grants the government a blank check. The crisis today is not a lack of constitutional authority, but a reluctance or inability to deploy it when the stakes are highest.
The Friction Between Judicial Power and Executive Mandates
The Indian Constitution establishes a delicate arrangement where the Supreme Court acts as the ultimate interpreter of the law. Under Articles 32 and 226, courts possess the power to scrutinize every state action. Yet, the executive branch frequently views this scrutiny as an impediment to rapid development and national security.
This tension is visible in how major policy decisions are handled. When a government pushes through sweeping legislative reforms, the affected public turns to the courts for immediate relief. If the court agrees to hear the matter but refuses to stay the implementation of the law, the policy becomes an accomplished fact. Years later, even if the court finds the law unconstitutional, reversing the damage is nearly impossible. This phenomenon of "judicial evasion" achieves the same result as a pro-government ruling, without the court having to write a controversial judgment.
The numbers tell a troubling story. Thousands of constitutional matters remain pending before constitutional benches for years. This backlog undermines the very immediacy that makes judicial review effective. A remedy delayed by a decade is not a remedy; it is a historical footnote.
How Structural Backlogs Weaponize Time
The mechanics of the Indian judicial system inadvertently favor the status quo. The Supreme Court of India operates under a staggering caseload that no other apex court in a major democracy faces. Unlike the US Supreme Court, which hears fewer than a hundred cases a year, the Indian Supreme Court functions largely as a court of appeal, dealing with thousands of routine matters alongside monumental constitutional questions.
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| The Cascade of Delay |
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| 1. Fast-Track Executive Policy/Law Passed |
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| 2. Constitutional Challenge Filed Immediately |
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| 3. Court Declines Interim Stay (Policy stays active) |
| ↓ |
| 4. Years of Postponements & Heavy Caseload Delays |
| ↓ |
| 5. Final Ruling Becomes Irrelevant (Fait Accompli) |
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When a bench must choose between hearing a bail application or interpreting a clause regarding federalism, the immediate liberty of an individual often takes precedence. Consequently, massive constitutional challenges regarding electoral mechanisms, state autonomy, and civil liberties are pushed to the back of the line. The executive leverages this structural bottleneck. By the time a piece of legislation is finally reviewed, the societal and economic integration of that policy is too deep to untangle.
The Problem of the Interim Stay
A critical tool in judicial review is the interim stay. If a court suspects a law might be unconstitutional, it can pause its implementation while it examines the details. Recently, however, there has been a noticeable reluctance to grant stays on major economic or social legislation. The argument presented by state attorneys is uniform: stopping a government initiative hurts public interest.
This argument turns the principle of constitutional supremacy on its head. If a law is potentially unconstitutional, the public interest is best served by stopping it immediately, not by letting it run amok until a final verdict is reached. By accepting the government’s plea of administrative inconvenience, courts inadvertently weaken their own reviewing authority.
The Illusion of Absolute Independence
No judiciary exists in a vacuum. The process of appointing judges in India, managed by the Collegium system, has become a battleground for influence. While the judiciary retains the final say in appointments, the executive holds the power of delay. By sitting on recommended names for months or selectively clearing candidates, the government can subtly influence the composition of the benches.
This friction leads to an unspoken compromise. Judges aware of the executive's vast powers may opt for a path of least resistance on politically sensitive matters while remaining fiercely independent on routine civil or criminal cases. This creates a dual reality. On one hand, the courts appear hyper-active, chastising local municipalities for bad roads or managing pollution levels. On the other hand, when major structural shifts in governance are challenged, the response is often marked by extreme caution and procedural delays.
Consider the historical precedent of the basic structure doctrine, established in the landmark Kesavananda Bharati case. The ruling declared that Parliament could not amend the fundamental features of the Constitution, including judicial review itself. It was a bold statement of judicial supremacy. Yet, a doctrine is only as strong as the judges willing to enforce it daily. When the basic structure is chipped away through minor legislative tweaks that escape strict scrutiny, the doctrine becomes an abstract concept rather than a practical shield.
The Danger of Public Interest Litigation Overreach
Public Interest Litigation (PIL) was conceived as a tool to democratize access to justice, allowing activists to fight for the rights of the marginalized. Over the decades, it has transformed into a double-edged sword that dilutes the focus of judicial review.
The Supreme Court regularly spends valuable hours deciding on matters that belong squarely within the domain of municipal administration or executive policy. Courts have ruled on everything from the height of human pyramids in festivals to the specific fuels used in public transport. While these interventions might yield short-term benefits, they come at a devastating cost to core constitutional duties.
When the highest court in the land acts as a super-legislature, it exhausts its intellectual and temporal resources. A court buried under petitions demanding the renaming of cities or the modification of school curricula simply lacks the bandwidth to conduct the rigorous, time-consuming analysis required to review complex federal laws or state surveillance programs.
Reclaiming the Constitutional Balance
Restoring judicial review to its rightful place requires more than speeches at legal conferences. It demands structural reform inside the Supreme Court itself.
The most viable solution is the permanent separation of the Supreme Court into two distinct divisions: a Constitutional Court and a Court of Appeal. The Constitutional Court would focus exclusively on interpreting the Constitution and exercising judicial review over state actions, completely insulated from the daily deluge of regular civil and criminal appeals. This division would ensure that monumental challenges to civil liberties and federalism are heard immediately, preventing the executive from exploiting judicial delays.
Furthermore, the judiciary must establish strict timelines for handling challenges to parliamentary acts. If a law alters the fundamental rights of citizens or reshapes state powers, the review process must be concluded within a fixed window.
The survival of a robust democracy depends on the certainty that no entity is above the law. When the machinery of judicial review slows down, the delicate balance shifts toward authoritarian governance. The power to review exists within the text of the Constitution; the urgency to exercise that power without fear or delay must come from the courtrooms.
