In a vibrant Democracy like Bharat, the harmonious interplay between the Legislature, Executive, and Judiciary is the cornerstone of constitutional governance. Each organ has a well-defined domain of authority and responsibility, carefully crafted by the framers of our Constitution to maintain a balance that upholds democratic values and ensures that no single branch usurps powers vested in another. However, when one institution oversteps its domain, particularly the judiciary, it risks unsettling the delicate constitutional balance envisioned by our founding fathers.
Vice President Shri. Jagdeep Dhankhar, in his recent address to the Rajya Sabha interns, has brought this urgent concern to the forefront, articulating with great clarity and conviction how judicial overactivism, far from strengthening democracy as is often claimed, threatens its very soul by undermining the electoral will of the people and the institutional framework laid down by the Constitution.
Baba Saheb Ambedkar’s Indian Constitution meticulously defines the domains of each pillar of Democracy. The Legislature is entrusted with the solemn task of framing laws through a deliberative and representative process that reflects the will of the people. The Executive, deriving authority from the elected Legislature, implements these laws, formulates policies, and administers the governance of the Nation. The Judiciary, revered as the guardian of the Constitution, is meant to interpret laws and ensure that Executive and Legislative actions remain within the bounds of constitutional propriety.
Yet, a troubling trend has emerged where judicial pronouncements have begun to venture beyond interpretation into the realms of governance, policy-making, and administration, areas that are constitutionally reserved for the elected representatives of the people. The Vice President drew attention to this phenomenon where governance increasingly occurs through court orders rather than executive decisions, questioning poignantly, “When executive governance is by judiciary, how do you ask questions ? Whom do you hold accountable in elections ?” His concerns highlight the grave democratic deficit that arises when unelected judges, who enjoy security of tenure and are insulated from the electorate, begin to exercise functions that rightfully belong to the Executive.
Judges are not subjected to the electoral process; they do not stand before the people to seek a mandate or to justify their decisions. Therefore, when judicial orders effectively govern the country, the electorate’s sovereign power to reward or punish governance through the ballot box is nullified, inflicting a direct and potentially irrevers-ible blow to the spirit of democracy. This situation funda-mentally alters the principle of Government by consent, replacing it with governance by judicial decree, which stands in stark contrast to the ethos of popular sovereignty.
In Bharat, there have been disturbing instances where courts have assumed roles well beyond the scope of interpretation, extending their influence to the framing and monitoring of policies. The Vice President lamented that judges increasingly communicate not just through judgments but also from public platforms and media interviews, engaging in discourses traditionally reserved for elected representatives and policy-makers. This trend not only disrupts the separation of powers but also risks politicising the judiciary, thereby eroding public trust in its impartiality.
A particularly troubling manifestation of judicial overreach can be traced to the domain of judicial appointments. Shri. Dhankhar pointed out the structural anomaly wherein the process of ‘consultation,’ as provided under Article 124 of the Constitution for judicial appointments, was judicially reinterpreted as ‘concurrence’ in the Second Judges’ Case (1993). This reinterpretation gave birth to the Collegium system, an opaque mechanism wherein judges appoint judges, insulating the process from any external oversight.
It is noteworthy that the Constitution uses the terms ‘consultation’ and ‘concurrence’ distinctly, reflecting a deliberate intent by the framers to ensure that the Executive has a role in appointments while respecting judicial independence. However, through judicial innovation, this balance was overturned, resulting in a system where accountability is virtually absent.
Dr BR Ambedkar himself had cautioned against giving the Chief Justice or the judiciary an absolute veto in appointments, describing such a proposition as ‘dangerous.’ Nevertheless, judicial activism eroded this cautionary principle, creating an extra-constitutional mechanism that operates without transparency or democratic accountability, thereby weakening one of the most vital checks and balances envisaged by the Constitution.
The Vice President also raised alarm over recent developments within the criminal justice system, wherein basic criminal procedures were seemingly bypassed in cases involving members of the judiciary.
He cited a serious alleged incident involving the judiciary that remained concealed from public knowledge for several days, with no First Information Report (FIR) – the cornerstone of lawful criminal investigation – being registered. Instead, an internal committee of judges was constituted to look into the matter, a move that lacks any statutory sanction and stands outside the established legal framework. This disturbing development raises two critical issues that strike at the heart of constitutional morality.
First, it challenges the principle of equality before the law. If ordinary citizens are immediately subjected to legal procedures, including FIR registration and investigation, how can judges be accorded a de facto immunity that the Constitution explicitly denies even to the President and Governors, save in specific circumstances ?
Second, it undermines the rule of law by permitting the judiciary to assume investigative roles, which are inherently executive functions. Such actions not only erode public faith in the impartiality of institutions but also set a dangerous precedent of self-regulation without accountability, reinforcing the notion that the judiciary exists above the law rather than within it.
Vice President Dhankhar rightly asserted that “investigation is the domain of the Executive, not Judiciary.” When judiciary tries to shield itself by resorting to parallel, self-created mechanisms, it tramples upon the fundamental tenet that no one is above the law – a tenet that serves as the bedrock of any Democracy worthy of the name. Furthermore, this creates a moral hazard where judicial conduct is judged by fellow judges without the transparency and procedural rigour that characterise statutory inquiries, thus compromising the credibility of outcomes and widening the chasm between the judiciary and the citizenry.
Another significant aspect scrutinised by the Vice President is the invocation of the Basic Structure Doctrine, born from the Kesavananda Bharati judgment of 1973, which has increasingly been projected as a holy shield against all forms of constitutional amendments and governance decisions.
However, historical evidence reveals that despite the existence of the Basic Structure Doctrine, the Emergency period (1975-77) witnessed the wholesale suspension of fundamental rights, mass incarcerations, and an alarming complicity of the judiciary in validating these unconstitutional excesses.
Therefore, the romanticized narrative that Basic Structure alone safeguards Democracy is a myth that does not withstand the scrutiny of historical experience. Democracy is nurtured not by unchallengeable doctrines or judicial sanctifications, but by vibrant public scrutiny, an active citizenry, and institutions that remain true to their constitutional limits while being accountable to the people they serve.
Judicial overactivism poses multifaceted threats to Democracy. It engenders an accountability crisis wherein unelected judges discharge executive functions without being subject to electoral correction mechanisms, thereby bypassing the most fundamental principle of representative Democracy.
It results in the erosion of the separation of powers by creating an administrative judiciary that frames and enforces policies, thus disturbing the delicate constitutional balance envisioned by our founders. It leads to the weakening of other institutions by creating friction between the judiciary and the elected arms of Government, undermining coherent and coordinated governance.
Moreover, judicial overreach fosters the rise of elitism within the judiciary itself, as self-regulation without external oversight breeds a culture of insularity, distancing the judiciary from the lived realities of the common citizen and insulating it from legitimate criticism.
As Bharat rises globally and aspires to reclaim its rightful position as a Vishwaguru, it is imperative that each constitutional organ respects its boundaries and operates within its defined sphere of authority. Only by adhering to this principle can we ensure a robust, resilient, and truly democratic governance structure.
Vice President Dhankhar’s exhortation to the youth – to question dominant narratives, to safeguard constitutional integrity, and to demand transparency and accountability from all institutions – is a clarion call that must be heeded if we are to fortify the future of Bharat’s Democracy.
For the health of Bharat’s Democracy, it is not merely advisable but absolutely imperative that the judiciary confines itself to speaking through judgments rendered within the scope of legal interpretation, rather than engaging in public discourses that can blur the lines of impartiality.
Executive governance must remain firmly in the hands of the elected Government, which is answerable to the people through periodic elections. Judicial appointments must embrace greater transparency and public scrutiny, moving away from opaque mechanisms that undermine the faith of the people.
Most importantly, the Rule of Law must be uniformly and unequivocally applied, without fear or favour, ensuring that no individual or institution, including the judiciary itself, stands above the constitutional framework.
In the grand vision of Vishwaguru Bharat, the Judiciary must remain independent yet restrained, powerful yet accountable. Judicial activism must not be allowed to metamorphose into judicial adventurism, for such a transformation would mark the beginning of democratic decay rather than its strengthening.
It is only through a sincere commitment to constitutional morality, institutional accountability, and public faith that Bharat’s Democracy can not only survive but thrive, leading the world by example in the twenty-first century and beyond.
(Courtesy : Excerpts from an Article by Siddhartha Dave on hindupost.in; 20.4.2025)
(Siddhartha Dave is an alumnus of the United Nations University in Tokyo and a former Lok Sabha Research Fellow. He writes on foreign affairs and National security.)
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