The Supreme Court of India: Major Institution of National Government

Upendra Bakshi describes how the supreme court of India is a major institution of national
government which in harmony with other organs the Union Executive and Parliament, holds up
the entire structure of democratic India. The constitution has assigned different roles to all of the
three organs for smooth governance of the country, in some cases if one organ tries to interfere in
the jurisdiction of another, constitution has laid down the system of checks and balances to make
sure that all the organs respect each other’s jurisdictions and function within them. The role of
the Supreme Court is to resolve disputes but apart from this it exercises legislative and
constituent powers. “The Supreme Court of India is overstepping out of its jurisdiction and
interfering in the functions performed by other organs that disrupts the whole idea of distribution
of power in a democracy”. Constitution has provided a system to make sure none of the organs
step out and interfere with the works of other but is this system really keeping a check on
Supreme Court? Supreme Court judgments make sure that the supremacy of the judiciary in
comparison to other organs of governance, remains established.
The state of India does not recognize the doctrine of separation of powers in its absolute form,
rather it has established a system of checks and balances. If we were to look at provisions of this
system they are all biased towards Supreme Court, allowing it maximum powers to actually
interfere in the jurisdiction of other organs. Article 50 of the constitution of India says that “State
shall take steps to separate the judiciary from the executive”, the whole purpose of this article is
to ensure the independence of judiciary. Judiciary can check parliament and executives by the
procedure of trials but what about the check on judiciary? Article 212 says that judicial conduct
of the judges if Supreme Court and High Courts cannot be discussed in the Parliament and State
Legislation. Such provisions make it extremely difficult of hold judiciary accountable of its
actions, the procedure if removal of judges is extremely complex and it gives them power to do
whatever they wish and they get away with it easily because after all they are not the ones who
are elected. Apart from being a dispute resolution organ Supreme Court can make or unmake the
constitution itself which establishes Supreme Court as the Hegemon.
There is no absolute system in the state of India to hold Supreme Court accountable. Though it is
stated that all the organs of the state have equal power but the supremacy of judiciary is
established by stating its independence. To this argument counter arguments might rise that the
independence of the judiciary is the one which enables it to serve justice but what we are
forgetting here, is that along with independence given to judiciary there is no accountability
mechanism and this is what can make The Supreme Court hegemon in the coming times. In the
famous Kesavananda Bharti Case the Supreme Court took the position that parliament may
amend the constitution but the basic foundation and structure of constitution will remain the
same. Headlines of various newspapers and articles read that “constitutional rights saved” over
here we are looking at small part but in the big picture Judiciary stated that anything within the
constitution can be altered except what will end its supremacy.
Another element of the story is that what happens if some rule which majority of the country
hates is passed on by the Supreme Court? What are the remedies available to us then? Surely
protests are an option but can protests have enough power to hold judiciary accountable?
Judiciary has accommodated with other organs as well, it is also asserting its power, and
previously it has taken decisions against interests of other organs as well. This idea of judiciary
getting away with its decisions is itself overpowering it to interfere in the power of other organs.
The main function of judiciary is to resolve disputes and act as the alarm bell and it can just
amend laws or add new provisions. Making a new law which has no base in the existing
constitution is interference in power of law making and is prohibited.
All in all, constitution of India has three pillars The Parliament for making of laws, the executive
for enforcement of laws made by the parliament and judiciary for dispute resolution. All the
three organs have separate jobs and are advised by the constitution not to interfere with others
work. Though constitution does not provides for absolute separation powers but to ensure
harmony within these three organs and for ensuring smooth function of the government it has
devised a system of checks and balances. Judiciary has the power of judicial review over
legislator and legislator can review the functioning of the government. Constitution provided
supremacy to the Supreme Court by ensuring its independence. Regardless of all of this there
have been instances where the constitution was interpreted by Supreme Court to carter its own
needs, ensuring that its supremacy over other organs continues. If this continues than that time is
not far away when Supreme Court would step up as hegemon. And this all will severely disrupt
the functioning of a democratic government. Therefore it needs to be checked that judicial
activism does not turns into judicial adventurism. We as citizens should hold the judiciary
accountable for its decisions and there is a need for both of the other organs to work together so
to ensure that judiciary found itself vulnerable. All of the above steps will help imposing
accountability on judiciary. Because the question is now or never.

Works Cited
Upendra Baxi, ‘Lecture I The Supreme Court and Politics’, and ‘Lecture III The Post-
Emergency Supreme Court: A Populist Quest for Legitimation’, in Indian Supreme Court and
Politics (Easter Book Company, 1980) pages 10-14, 16-26, 121-126, 146-150, 188-197
Simons, Charles C. “Judicial Powers: Their Exercise Without Constitutional
Safeguards.” American Bar Association Journal, vol. 34, no. 10, 1948, pp. 907–977. JSTOR,
www.jstor.org/stable/25716612. Accessed 23 Dec. 2020.
Simran, “Legislature versus Judiciary” (July 7, 2017)
<https://www.prsindia.org/theprsblog/legislature-versus-judiciary> accessed December 18, 2020