Judicial Rule By Stealth - Constitutional Implications Of The Expanding Jurisdiction Of The Indian Judiciary

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:26:21.030325+00:00

Updated: 2026-08-26T17:10:52.518+00:00

JUDICIAL RULE BY STEALTH: CONSTITUTIONAL

IMPLICATIONS OF THE EXPANDING JURISDICTION OF

THE INDIAN JUDICIARY

Shambhunath Yadiyapur, Gujarat National Law University, Silvassa

ABSTRACT

Independent Judicial Review is a core component of constitutionalism. Sustaining this judicial autonomy mandates its insulation from populist influence, although some jurisdictions such as USA practice democratic judicial appointments. The Indian justice system is constitutionally designed to be an adjudicatory and advisory body, anything otherwise could be extraconstitutional. The separation of powers, as envisaged by the constitution, is qualified rather than absolute, enabling inter-institutional dialogue between the organs of the state. This constitutional structure is disturbed by ever expanding judicial jurisdiction in absence of a constituent sanction.

This article shall examine the implications of judicial law-making; Judicial legislation may manifest either in active form with by judicial lawmaking or it may be in passive form by judicial veto of legislative or executive actions. Through repeated extraconstitutional interventions, the practice of judicial legislation may effectively legitimise the judicial usurpation of legislative and executive space. This article would also examine the principal repercussions of judicial construction of doctrines explicitly untraceable in the constitution such as the doctrine of constitutional morality. This article would be a doctrinal study aimed to explore the phenomenon in light of recent municipal developments.

This research seeks to evaluate the constitutionally permissible scope of judicial review, the potential dilution of separation of power doctrine and the impact of judicial intrusion outside its domain on democratic governance in India. Keywords: Judicial Review, Electoral Democracy, Judicial overreach, Judicial Legislation, juristocracy.

1. Introduction

Law qualifies humans from animals. 1 We settle for the law to govern our society because no person merits to govern in its stead. 2 All laws are designed, or inherited,3 to serve a determinate will. As Marshal J. words it, “Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law. ”4 Beg J. observes that the will of the peoples representatives i. e. , the legislature suffers from relative fallibility and is short-lived in comparison to the will of the people which caused the creation of the constitution of India. And, as interpreters of law, his lordship asserts “[t]he Courts thus act as agents and mouthpieces of the "Real Will" of the people themselves” ... “unless compelled by the law of the Constitution to abstain from doing so”.

5 Moreover, the court does acknowledge the limitations weighed by the doctrine of Separation of Power. 6 Dr. Ambedkar rather feared if constitutional democracy would be sustainable in India. 7 He questions thus before the Constituent Assembly: “Who can say how the people of India and their parties will behave? Will they uphold constitutional methods of achieving their purposes or will they prefer revolutionary methods of achieving them? ”. 8The judicial challenge of juggling about foregoing will be doctrinally investigated by this research article.

2. The Constitutional Function of an Autonomous Judiciary

While deliberating upon Article 124 of the Constitution (then draft Article 103), Prof. S.L. Saksena necessitated that the Supreme Court should not become “a creature merely of the Executive...”.9 This view was also echoed by Shri M.A. Ayyangar by asserting that

1 Huntington Cairns, Plato’s Theory of Law, 56 HARV LAW REV 359, 362 (1942).

2Id. at 365.

3 Union of India v. Tulsiram Patel, (1985) 3 SCC 398, ¶ 73.

4 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).

5 Indira Nehru Gandhi v. Raj Narain, MANU/SC/0304/1975, ¶ 394.

6 Id.

7 Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 13, at 61–62 (Vasant Moon ed., 1st ed. 1994, reprinted by Dr. Ambedkar Found. 2014).

8 11 CONST. ASSY. DEB. 978 (25 November 1949) (6th reprint, Lok Sabha Secretariat 2014).

CONST.

ASSY.

DEB.

(May 24, 1949), available at https://sansad.in/uploads/const_Assmbly_Debates_Volume8_24_May1949_b8baf89325.pdf.

“[t]he Supreme Court is the watchdog of democracy”. 10 It would be defective to overlook the special circumstances under which the Indian constitution was produced; post Indian independence from the shackles of colonialism. India housed, if not houses, a fragmented society which was democratically incompatible. The new social order mandated by constitution appeared alien to the feudal Indian society. 11 Therefore, whence Pt. Nehru advocated for a flexible constitution by asserting that “there is no permanence in constitutions”12, enabling thereby the legislature to alter the constitution as they fancy, Dr. Ambedkar cautioned that “the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression.

” He further adds, “The legislature may be free to frame any law; the executive may be, free to take any decision; and the Supreme Court may be free to give any interpretation of the law. It would result in utter chaos. ”13 Hence, the founding parents of the Indian Republic envisioned a constitution that was intolerant to tyranny by either organ of the state. Moreover, Shri Hanumanthaiya, while arguing against a strict separation of power, favoured a harmonious governmental structure instead of a conflicting trinity of the executive, judiciary and the legislature. 14 This trinity was planted and nurtured by the constitution to propel the aspirations advanced by the republic. A nonpartisan judiciary is to monitor the other organs of the state to be functioning as

limited and desired by the constitution.15 It is entrusted with the power of judicial review to safeguard, inter alia, constitutionally guaranteed civil liberties.16 The judiciary is dubbed to be the guardian of the constitution;17 but to let the judiciary function as a house of the legislature, would be to err this constitutional setup.18 It is pertinent to note at this

10 Id.

11André Béteille, Constitutional Morality, 43 ECON. & POL. WKLY. 35, 36 (Oct. 4–10, 2008). 12 Rajya Sabha Debates, (4 Nov. 1976), 44th Constitution Amendment Bill, 1976, at 111–112 (Gov’t of India).

13 9 CONST. ASSY. DEB. 1664 (Sept. 17, 1949) (6th reprint, Lok Sabha Secretariat 2014).

14 7 CONST. ASSY. DEB. 962 (Dec. 10, 1948) (6th reprint, Lok Sabha Secretariat 2014).

15 P.N. Bhagwati, Pressures on and Obstacles to an Independent Judiciary, 102 LAW & JUST. – CHRISTIAN

L. REV. 44, 44 (1989).

16 Id.

17 Constructive Criticism of Judgments Helps in Development of Law; People Guardians of Judiciary: Justice CT Ravikumar in Farewell Speech, Live Law (Apr. 2, 2024), https://www.livelaw.in/top-stories/constructivecriticism-of-judgments-helps-in-development-of-law-people-guardians-of-judiciary-justice-ct-ravikumar-infarewell-speech-279944.

18 "Nehru Was Hurt": Top Lawyer KK Venugopal on Judicial Independence, NDTV (Apr. 3, 2024),

https://www.ndtv.com/india-news/nehru-was-hurt-top-lawyer-kk-venugopal-on-judicial-independence-7331477.

stage that the harmony envisioned in the Constituent Assembly prerequisites the organs to not encroach into domain exclusively reserved for the other. The clash between the organs is clearly visible. On one hand, the executive views that the constitution is evolved and blossomed because of the legislature and not the judiciary,19 while on the other hand, perhaps incidentally, the then CJI, a year later, opined that the constitution evolves through the judiciary. 20 For the judiciary, the most suitable method to ensure that the constitutional courts and the officers who preside as judges of these courts remain nonpartisan and uncontrolled by the executive was to institute a committee occupied exclusively by the judges who would choose their own successors (the collegium); absent any say by democratic institutions.

21 Another issue that concerns judicial appointments is the saga of post-retirement judicial appointments which continue to attract criticism. 22 A study by Bar and Bench indicates that up to 21% of Supreme Court judges who retired last year took up post-retirement posts. 23 When the Parliament sought to introduce an alternative though the National Judicial Appointment Commission24, the Apex court struck it down, inter alia, on the ground that it violated the basic structure doctrine. Justice P. N. Bhagawati criticised this model of judicial appointment of judges appointing judges on the following grounds25: a) Nowhere in the world do judges appoint judges in superior courts (a view echoed by former Law 19 "Constitution Has to Evolve Through Parliament, Not Judiciary: V-P Dhankhar", Bus. Standard (Mar. 19, 2023), https://www. business-standard.

com/article/current-affairs/constitution-has-to-evolve-through-parliamentnot-judiciary-v-p-dhankhar-123031900725_1. html.

20 "Restricting Constitution to Originalist Interpretation Is Unjust; It’s a Living Document: CJI DY

Chandrachud", Live Law (Jan. 22, 2024), https://www.livelaw.in/top-stories/restricting-constitution-tooriginalist-interpretation-is-unjust-its-a-living-document-cji-dy-chandrachud-270847. 21 Anurag Deep & Shambhavi Mishra, Judicial Appointments in India and the NJAC Judgement: Formal Victory or Real Defeat, 3 JAMIA L.J. 49, 75 (2018). 22 "Post-Retirement Jobs for Judges: Supreme Court Reserves Judgment on Plea Seeking Cooling-Off Period", Bar & Bench (Apr. 3, 2024), https://www.barandbench.com/news/post-retirement-jobs-court-bci. 23 "21% of Supreme Court Judges Who Retired in the Last 5 Years Took Up Post-Retirement Posts", Bar & Bench (Apr. 3, 2024), https://www.barandbench.com/news/litigation/21-of-supreme-court-judges-who-retired-in-thelast-5-years-took-up-post-retirement-posts.

24 Supreme Court Advocates-on-Record Ass'n v. Union of India, MANU/SC/1183/2015.

25 P. N. Bhagwati, supra note 15, at 48.

Minister Shri Arun Jaitley26 and the present Vice President Shri Jagdeep Dhankhar27); b) the judges are unelected and therefore, they do not represent the people nor are they accountable to them. These views were published before the second judges’ case,28 hence the words were directed towards the Chief Justice as the sole appointer and not the collegium, as was developed subsequently. However, it is noteworthy, that Justice Bhagwati favoured the representation of the executive in the appointment of judges.29

3. Judicial Overreach in India

The Indian Judiciary favours living constitutionalism over the originalist interpretation. 30 In fact, the former CJI Dr. D. Y. Chandrachud deemed the originalist interpretation to be unjust. 31 The non-originalist theory empowers the courts to depart from the original intent of the framers of the constitution (democratically elected representatives)32 and substitute the intent as fancied by the judiciary. 33 It allows the court to deviate from the original meaning of the constitutional text. Living constitutionalism enables judges to import originally absent text or ideas into the constitution in order to construct a desirable interpretation; inter alia, by comparative constitutionalism and extranational constitutionalism (which allows the judges to adopt norms that “invalidate, alter, or supplement a national constitution”).

34 Living constitutionalism is incompatible with the originalist approach. 35 The issue associated with living constitutionalism is further amplified when it is read with constitutional morality; a term feared to be abstract and vague. 36

26 "Law Can't Justify a Situation Where CJI Appoints Judges: Govt", Bus. Standard (Nov. 27, 2015),

https://www.business-standard.com/article/pti-stories/law-can-t-justify-a-situation-where-cji-appoints-judgesgovt-115112700999_1.html. 27 "Twice in Four Days, Vice President Jagdeep Dhankhar’s NJAC Pitch for Judicial Accountability", The Wire (Jan. 16, 2023), https://thewire.in/law/twice-in-four-days-vice-president-jagdeep-dhankhars-njac-pitch-forjudicial-accountability.

28 Supreme Court Advocates-On-Record Association v. Union of India, AIR 1994 SC 268.

29 P. N. Bhagwati, supra note 15, at 49.

30 "Originalism v. Living Constitutionalism: The Debate Goes On", SCC Online (Sept. 13, 2022),

https://www.scconline.com/blog/post/2022/09/13/originalism-v-living-constitutionalism-the-debate-goes-on/.

31 Id.

32 "Constituent Assembly", Sansad (last visited Apr. 3, 2024), https://sansad.in/ls/about/constituent-assembly. 33 Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 NW. U. L. REV. 1243, 1259 (2019).

34 Id. at 1271.

35 Id. at 1281.

36 "Constitutional Morality a Dangerous Weapon, It Will Die with Its Birth: K.K. Venugopal," LiveLaw (Dec. 9, 2018), https://www.livelaw.in/constitutional-morality-a-dangerous-weapon-it-will-die-with-its-birth-kkvenugopal.

A) Constitutional Morality

Constitutional morality is the idea of conducting oneself in consonance with the norms posited by the constitution. 37 It is the constitutional morale that the nation and its institutions must pursue and not what may be deemed populist; for the latter is temporal. 38 When Dr. Ambedkar quoted George Grote to explain the term constitutional morality before the constituent assembly, he intended to use it as a rhetoric to endorse inculcation of constitutional values within the citizens of the country. He aspired the governed and the governors (who rise from the same society) to practice democracy in fact and not in form alone. 39 It is evident from the occasion where he laments the need to draft the lengthiest constitution while some states like Britain do well even without a written grundnorm. 40 Dr.

Ambedkar, and the members of the Constituent Assembly, never imagined that constitutional morality would ever be employed by the courts as a test to disqualify legislative actions. 41 At best, constitutional morality could be construed to be a directive and not a tool to nullify the legislative deeds. 42 Pt. Nehru too voiced concern over what the nation may witness from the judicial front. He remarked, “Within limits no judge and no Supreme Court can make itself a third chamber. No Supreme Court and no judiciary can stand in Judgment over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately the whole Constitution is a creature of Parliament.

”43 He feared that the judiciary must not behave as a corrective house, seated above the peoples’ representatives. He further adds, “... even the Legislature may go wrong, but ultimately the fact remains that the legislature 37 Dr. G. V. Mahesh Nath, Constitutional Morality - A Need for Consensus on the Concept 6 (Mar. 16, 2019), available at https://ssrn. com/abstract=3353874. 38 Ajay Kumar, Two Different but Same Perspectives on Constitutional Morality, ILI L. REV. 258, 262 (Winter 2022).

39 11 Constituent Assembly Debates 978 (Nov. 25, 1949) (Lok Sabha Secretariat, 6th reprint 2014).

40 André Béteille, supra note 11.

41 Shelal Lodhi Rajput, Doctrine of Constitutional Morality: Ammunition in the Hands of Judiciary or Instrument of Justice?, 2 CIFILE J. INT'L L. 31 (Fall 2021). 42 "Constitutional Morality Used to Strike Down Laws is Dangerous: K.K. Venugopal," Bar & Bench (Dec. 9, 2018), https://www.barandbench.com/news/constitutional-morality-strike-laws-dangerous-kk-venugopal.

439 Constituent Assembly Debates 1198 (6th reprint, Lok Sabha Secretariat 2014) (Sept. 10, 1949).

must be supreme and must not be interfered with by the courts of law in such measures of social reform. Otherwise, you will have strange procedures adopted.”44 B) Unfettered and Untraceable Judicial Discretion

When a meaning posited by the constitutional text is stretched, the fabric of lexicon is punctured. This puncture enables space for accommodation novel ideas, which are then judicially supplied. Constitutional morality enables judicial legislation. Further, when the foregoing is read with Article 142 of the constitution, it equips the Apex court45 with unfettered power to effectively veto legislations or substitute them with judgements masquerading as positivist laws. When the Supreme Court indefinitely stayed the implementation of the farm laws, the Advocate General (AG) opposed the decision on the ground that the presumption of constitutionality favours the legislation. 46 Further, the AG added that “Staying implementation of law is same as staying. Court cannot do indirectly what it cannot do directly”.

47 Justice Beverley McLachlin of the Hong Kong Court of Final Appeal, observes that judges, by the nature of their duty of reflecting a nonpartisan spirit48, must refrain from engaging with the media, with the community and the society. Therefore, she asserts, “[t]hey live in ivory towers, remote from the bustle and controversy of the real world far below. ”49 Pt. Nehru too endorsed the same view. 50 The Apex Court aspires to be accessible for the “butcher, the baker and the candlestick maker”51 but the court fails to even entertain petitions under Article 32 for want of

44 Id.

45Two Different Voices in Supreme Court Are Dangerous, Says Attorney General Venugopal, Hindustan Times (Nov. 25, 2023), https://www. hindustantimes. com/india-news/two-different-voices-in-supreme-court-aredangerous-says-attorney-general-venugopal/story-r9W58Y3m5ODzdbprBTUjWL. html. 46 Rakesh Vaishnav v. Union of India, Writ Pet. (Civ. ) No. 1118/2020, ¶¶ 9-10 (Supreme Court of India). 47 Farm Laws: Supreme Court Stays Implementation; Forms Committee To Resolve Issues, LiveLaw (Jan. 12, 2021), https://www. livelaw. in/top-stories/farm-laws-stay-supreme-court-farmers-protests-168236. 48 The Story of an Assassination Attempt in the Supreme Court and an Unyielding Judge, The Wire (Feb. 4, 2024), https://thewire. in/law/the-story-of-an-assassination-attempt-in-the-supreme-court-and-an-unyielding-judge. 49 Beverley McLachlin, Judges and the Public: Ivory Tower Recluses or Engaged Actors?

, Address to Judiciary (Dec. 12, 2019), https://www. hkcfa. hk/filemanager/speech/en/upload/2248/20191212%20McLachlin%20NPJ%20- %20Address%20to%20Judiciary%20(final%20for%20uploading). pdf. 50 Isha Tirkey, Judicial Accountability in India: Understanding and Exploring the Failures and Solutions to Accountability, CCS Working Paper No. 247, at 8, Centre for Civil Society (2011).

51 Bidi Supply Co. v. Union of India, MANU/SC/0040/1956, ¶ 31.

exhaustion of alternate remedies. 52 Dr. Ambedkar viewed Article 32 in high regard. He explains its purpose thus: “Ordinarily you must first file a suit before you can get any kind of order from the Court, whether the order is of the nature of mandamus, prohibition or certiorari or anything of the kind. But here, so far as this article is concerned, without filing any proceedings you can straightaway go to the Court and apply for the writ”. 53 He further adds, “If I was asked to name any particular article in this Constitution as the most important—an article without which this Constitution would be a nullity—I could not refer to any other article except this one. ”54 The Apex Court have supplied reasons untraceable in the constitution to deprive litigants from enjoying the fruits of Article 32. In P. N. Kumar and Anr. v.

Municipal Corporation of Delhi55, the Supreme Court, while declining to entertain invocation of Article 32, reasoned that, inter alia, moving to a High Court would be convenient and cheaper to the litigant; and would not burden the Supreme Court. In this case, the petitioner had prayed that a case involving same point of law was already pending before the Supreme Court. The bar on constitutional relief is justified by the court as “a rule of policy, convenience and discretion”. 56 The judiciary thus reflects that it is occupied with excessive pending judicial work. 57 The judiciary has, moreover, failed to declare the criteria or norm that shall guide the exercise of this discretion (which the original text did not intend to bestow onto the institution). Yet the courts venture into the domain exclusively reserved for the other organs of the state.

The then US Chief Justice John Roberts, commenting on the workload of the American judiciary, remarked, “So long as the court views itself as ultimately responsible for governing all aspects of our society, it will, understandably, be overworked”. 58 Despite the burden of judicial work, the Indian judiciary has been optimistic in allocating its sparce resources to work in the shoes of the other state organs as would be discussed in the following chapters. 52 Internet Freedom Found. v. Union of India, Writ Pet. (Crim. ) Diary No. 53491/2023 (Supreme Court of India).

53 7 Constituent Assembly Debates 952 (Dec. 9, 1948) (Lok Sabha Secretariat, 6th reprint 2014).

54 Id. at 953.

55 P.N. Kumar and Anr. v. Municipal Corassporation of Delhi, 1987 INSC 305.

56 State of U.P. v. Mohammad Nooh, MANU/SC/0125/1957, ¶ 12.

57 Roshni Sinha, Explainer: Code on Occupational Safety, Health and Working Conditions, PRS India (Aug. 8, 2019), https://prsindia.org/theprsblog/explainer-code-occupation-safety-health-and-workingcondition?page=2&per-page=1. 58 David E. Rosenbaum, White House Memos Offer Opinions on Supreme Court, N.Y. Times (July 30, 2005), https://www.nytimes.com/2005/07/30/politics/politicsspecial1/white-house-memos-offer-opinions-on-supremecourt.html.

4. Judicialization of Politics

Unlike other jurisdictions59, in India, where judges are appointed by the judges, judicial exercise of political power is positioned produces novel concerns. Separation of power helps prevent one organ of the state from retaining disproportional power in relation to the other organs of the state. This balance is necessary for a functioning democracy. 60As discussed in the foregoing, its visible that the judiciary is transcending into a superlegislature,61 by usurping the powers enjoyed by the legislature and the executive. Justice (retd) B. N. Shrikrishna presents the following analogy: the judges are like cricket umpire. If the batsman is unable to hit a ball for a six, the umpire cannot snatch a bat and hit in place of the batsman. He further adds that the judiciary has occupied the space reserved for the Parliament. 62 Judicial activism is a cloak that protects judicial legislation i.

e. , judges making positive law. 63 Some argue that the net result helped the society, hence activism must be permitted, if not celebrated. 64 However, as M. K. Gandhi remarks, means adopted must be proportional to the end. 65 Moreover, Dr. Ambedkar asserts that “where constitutional methods are open there can be no justification for these unconstitutional methods. ”66 The judiciary, the guardian of the constitution67, which labels the separation of power doctrine as a ‘basic feature’ of the constitution68, should be the last institution to disobey the constitutional mandate. No eminent judge can fill the shoe of an administrator familiar with the actual ground 59 Rainer Knopff, Populism and the Politics of Rights: The Dual Attack on Representative Democracy, 31 Can. J. Pol. Sci. 683, 683 (1998).

60 Sri Somnath Chatterjee, Separation of Powers and Judicial Activism, AIR J. 97 (2013).

61 Id. at 98.

62 Justice Srikrishna, Too Much Judicial Interference Weakens Judiciary: Justice Srikrishna, Bus. Standard (Dec. 6, 2016), https://www.business-standard.com/article/news-ians/too-much-judicial-interference-weakensjudiciary-justice-srikrishna-116120601027_1.html.

63 Justice B.N. Srikrishna, Skinning a Cat, (2005) 8 SCC (J) 3.

64 Justice P.N. Bhagwati and the Supreme Court of India: The Man Who Saw Tomorrow, LiveLaw (Nov. 30,

2020), https://www.livelaw.in/columns/justice-pn-bhagwati-supreme-court-of-india-judicial-activism-birthanniversary-167516.

65 Justice B.N. Srikrishna, supra note 63.

66 11 Constituent Assembly Debates 978 (Nov. 25, 1949) (Lok Sabha Secretariat, 6th reprint 2014).

67 "Constitution Being Ruined by Those Supposed to Defend It; Judges Looking for Divine Guidance to Decide: Sr. Adv. Indira Jaising", LiveLaw (Mar. 24, 2024), https://www.livelaw.in/top-stories/constitution-being-ruinedby-those-supposed-to-defend-it-judges-looking-for-divine-guidance-to-decide-sr-adv-indira-jaising-284733.

68 Indira Nehru Gandhi v. Raj Narain, MANU/SC/0304/1975.

realities. 69 Thus, a court is not the appropriate forum for prescribing policies to the executive. 70 Justice Shrikrishna further notes that “the answers to many socio-economic and political problems lie with Parliament and in a polling booth and not in a courtroom”. 71 In 2007, the Supreme Court observed “if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial setting”. 72 However, the court itself has failed to follow this observation on multiple occasions.

A notable demonstration of the same is its handling of the COVID 19 Pandemic timeline. The Supreme Court took Suo Motu cognisance of the “unprecedented humanitarian crisis” concerning the deaths and body disposal practices73, prioritisation of the supply of services to certain people (vaccine, oxygen etc. policies),74 migrant labour crisis,75 Kanwar Yatra in U. P. 76 and Eid celebrations in Kerala77 and issued directions of kind to the executive to function as deemed fit by the Court. When Karnataka High Court ordered the Union Government to supply 1200 tonnes of oxygen daily to Karnataka, the Supreme Court refused to stay the order. 78 When the Union Government failed to supply 700 MT oxygen per day to Delhi, the Delhi High Court issued contempt notice against the

69 Justice B.N. Srikrishna, supra note 63.

70 Nupur Chowdhury, From Judicial Activism to Adventurism—The Godavarman Case in the Supreme Court of India, 17(1) ASIA PAC. J. ENVTL. L. 177, 188 (Nov. 2014).

71 Justice B.N. Srikrishna, supra note 63.

72 Divisional Manager, Aravali Golf Club & Ors. v. Chander Hass & Ors., MANU/SC/4463/2007, ¶ 38.

73 In Re Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in Hospitals, Etc., Suo Motu Writ Petition (Civ.) No. 7 of 2020 (Supreme Court of India).

74 In Re Distribution of Essential Supplies & Services During Pandemic, 2021 SCC OnLine SC 339.

75 In Re Problems & Miseries of Migrant Labourers, Suo Motu Writ Petition (Civ.) No. 6 of 2020 (Supreme Court of India).

76 In Re Alarming Newspaper Report Regarding Kanwar Yatra in State of U.P., MANU/SCOR/20529/2021.

77 In Re Alarming Newspaper Report Regarding Kanwar Yatra in State of U.P., MANU/SC/0463/2021.

78 "Outreach and Overreach: The Hindu Editorial on Judicial Intervention Against the Union Government’s Flailing Response to

COVID-19

Crisis," The Hindu (May 9, 2021), https://www.thehindu.com/opinion/editorial/outreach-and-overreach-the-hindu-editorial-on-judicialintervention-against-the-union-governments-flailing-response-to-covid-19-crisis/article34522564.ece.

government79, which was subsequently stayed by the Supreme Court on the condition that the government will comply. 80 Even amidst a national crisis, the executives were compelled to tussle with the judiciary to operate in its own dedicated lane. The Supreme Court subsequently admitted that its decision to compel the Union Government to supply Delhi with 700 MT was erroneous, as Delhi already had surplus medical oxygen. 81 This demonstrates the peril of judicial intervention into policy-making. Although India does not follow a strict separation of power, it, however, remains a part of the basic feature of the constitution82 immune from unnecessary dilution; excessive dilution of the doctrine by the judiciary would breed democratic deficit.

83 If courts are justified to ignore separation of power on the ground that the other state organs are functioning inadequately or insufficiently, then by the same logic, it would be equally justifiable for the other state organs to assume judicial functions i. e. , adjudicating disputes and interpreting laws on the ground that the courts have failed to settle the backlog of millions of pending cases. 84

5. Conclusion

Judicial review in India has evolved to empower the Indian judiciary as the world’s most powerful judiciary. 85 The Law Commission of India, in 1982, issued a questionnaire to solicit public opinion on evolving a methodology for speedier disposal of cases. One of the questions contained therein was ‘Do you feel that the Supreme Court is acting as the third chamber? ’. 86 Around the same time period, in 1979, the Supreme Court pronounced “if legislative undertaking is not in sight judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of 79 "Delhi HC: Centre Failed in Oxygen Supply to Delhi, Show Cause for Contempt," Live Law (May 4, 2021), https://www. livelaw. in/news-updates/delhi-hc-centre-failed-oxygen-supply-delhi-show-cause-contempt-173584.

80 "Supreme Court Stays Delhi High Court’s Contempt Notice, Increases Oxygen Supply to Delhi to 700 MT," Live Law (May 5, 2021), https://www. livelaw. in/top-stories/supreme-court-stays-delhi-high-courts-contemptnotice-increase-oxygen-supply-to-delhi-as-700-mt-173640.

81 "Delhi Oxygen Audit Report: GNCTD Used Wrong Formula to Project 700 MT Demand in Supreme Court,"

Live Law (June 25, 2021), https://www.livelaw.in/top-stories/delhi-oxygen-audit-report-says-gnctd-wrongformula-used-project-700-mt-demand-in-supreme-court-176268.

82 Supra note 68.

83 Tanishka Goswami & Shikhar Aggarwal, Suo Moto Jurisdiction of the Supreme Court: Usurpation of Powers or a Tool for Complete Justice, NLSIR Online (Oct. 24, 2023), https://www.nlsir.com/post/suo-motu-jurisdictionof-the-supreme-court-usurpation-of-powers-or-a-tool-for-complete-justice.

84 Supra note 57.

85 Madhav Godbole, The Judiciary and Governance in India 84 (Rupa Co., 2009).

86 Id.

supplementary principles even if it may appear to possess the flavour of law-making”. 87 The court here embraced the support by Lord Dennings, an English Jurist. The Indian judiciary is unlike any in the world; here judges appoint judges88 and unlike the English legal system, parliamentary sovereignty89 is absent in India. The Indian Judiciary’s subscription to living constitutionalism interpretation has empowered the courts to borrow from the world; it has effectively helped Indian courts expand their jurisdiction by constructing laws as favourable to their institution, albeit at the jeopardy to the other organs of the state. To deviate excessively from the originalist school of interpretation is to be farther alienated from the very basic features of the constitution that the judiciary aspires to preserve.

Undisturbed expansion of judicial power at the cost of democratic institutions and their reserved spaces may likely develop a convention of juristocracy90 and disturb democracy in India.

87 Rajendra Prasad v. State of U.P., AIR 1979 SC 916.

88 Supra note 21.

89 "Parliamentary Sovereignty," UK Parliament (last visited Apr. 3, 2025), https://www.parliament.uk/siteinformation/glossary/parliamentary-sovereignty/.

90 Carol Nackenoff, Is There a Political Tilt to "Juristocracy”? 65 MD. L. REV. 139, 140 (2006).