Democracy flourishes not when its institutions are placed on a pedestal but when they are placed under scrutiny.
A democracy is built on debates. Institutions are the foundation of the democracy. Yet, increasingly, the institution of the judiciary seems to function not on discourse and debates but as an echo chamber. The Vice-President’s recent remarks criticising the Supreme Court for directing the President to act within a timeline on Bills passed by state legislatures have stirred a hornets’ nest. What followed was an orchestrated moral outrage. Sadly, not over the constitutional issue raised but the audacity of questioning the judiciary itself. A judiciary that has recently been plagued with corruption and has just transferred the judge. Nobody is above the law including judges. India is a parliamentary democracy with parliamentary sovereignty.
This is not just about one verdict or one voice of dissent. It’s about a disturbing pattern. The moment the judiciary is questioned even politely, the response is framed as an attack on judicial independence. Why has this branch of democracy become such a taboo for criticism? When did honest scrutiny become equivalent to heresy? It is perhaps time we moved beyond binaries of judicial independence vs. executive overreach and instead examined the real issue in front of us: are we ready for institutional accountability across all branches of the state?
WHEN SCRUTINY BECOMES SACRILEGIOUS
Let us be clear: judicial independence is non-negotiable. But judicial infallibility? That is a dangerous myth. The Supreme Court has made historic interventions, but it has also made serious missteps. The record is not spotless, from the controversial ADM Jabalpur judgment during the Emergency to the contentious Bhopal Gas tragedy settlement using Article 142. And that is precisely the point: if even apex court judges can be fallible, why should they be exempt from scrutiny like any other pillar of governance? Vice-President Jagdeep Dhankhar questioned the Supreme Court’s 8 April judgment, where a two-judge bench invoked Article 142 to set timelines for the President and Governors to assent to state Bills. Critics of his remarks said the Vice-President was attacking constitutional values. But pause for a moment. Is raising a concern about judicial overreach—especially when the judiciary directs the head of state—not a legitimate area for constitutional discourse?
Criticising the judiciary is immediately painted as sacrilegious. Judges are not philosopher-kings who are beyond reproach. We know very well how many Supreme Court appointments happened through an opaque collegium system marked by selectiveness, parochialism, and even nepotism. Isn’t the judiciary under threat when such things happen? When the collegium system was replaced, how did it come back by intention, discussion and whims of just one branch of government? And yet, questioning it is somehow seen as destabilising democracy. No other branch of government enjoys such insulation. Parliamentarians face elections. Ministers face no-confidence motions. Bureaucrats face audits and RTI. But judges? They decide what gets heard, when, and how—and those decisions shape lives and laws. That power deserves scrutiny, not adulation. Very ironic that judges are allowed to overreach, but criticism should not be allowed to reach judges.
ARTICLE 142: FROM CONSTITUTIONAL TOOL TO POLITICAL WEAPON?
The Supreme Court’s 8 April judgment that prompted VP Dhankhar’s comment, was not just bold but constitutionally unprecedented. By invoking Article 142, the Court cleared 10 Tamil Nadu state bills pending with the Governor and the President, some since 2020. The Court did not just interpret the law—it acted like the executive. It overrode the President’s delay, invoked “complete justice,” and passed what effectively amounted to “deemed assent,” which is surprising given our Constitution (unlike a few other countries) has no provision for “deemed assent upon the expiry of the specified time period.” In this way, the 8 April verdict essentially introduced a new constitutional practice: “deemed assent” without the President’s actual signature. In such a sense, Article 142 was meant for exceptional cases. Yet, in recent years, it has been invoked with surprising frequency. This growing use demands a hard look. Is the judiciary becoming too comfortable, blurring the lines between lawmaker and adjudicator?
The Vice-President was not wrong to raise the alarm. The Constitution gives the President discretion, not deadlines. And while executive inaction is frustrating, judicial activism cannot mean judicial overreach. Article 142 was never intended to bypass entire branches of government—it was meant to deliver justice where the law falls silent. But today, it is increasingly used to deliver outcomes where the law is simply inconvenient. Judicial discretion must not be a synonym for judicial supremacy. After all, is this not what we fear in politicians: unbridled power cloaked under the garb of legitimacy? Why should it be any more acceptable when wielded by the judiciary?
CHECKS AND BALANCES ARE A
TWO-WAY STREET
The doctrine of separation of powers was not crafted to protect turf. It was designed to build a system of mutual accountability. Legislators must face voters. The executive must answer to Parliament. And the judiciary must be transparent and just—not just in its judgments, but in its conduct. In such a sense, checks and balances are a two-way street. Each gets to keep the other in checks. But today, the Supreme Court sets its own agenda. It hears public interest litigations selectively, prioritises high-profile cases often driven by media narratives, and delays politically inconvenient ones. Meanwhile, over 81,836 cases languish in the apex court alone today (22 April 2025). Judicial delays are not an anomaly anymore, they are the norm. And still, there is no mechanism of redress. No audit. No real consequence.
When a judge’s ideological leanings or media appeal influence which cases get listed, it is not just inefficient but undemocratic. We cannot pretend the judiciary is above politics when its behaviour increasingly resembles it. More alarming is how a growing part of the political class is reluctant to ask these questions, that too not out of conviction but out of fear. Once rooted in constitutional wisdom, the judiciary’s moral authority now often rests on selective praise and unearned silence. This is not the mark of an independent judiciary but a symptom of an unquestioned one.
DEMOCRATIC REVERENCE, NOT JUDICIAL REVERENCE
Democracy flourishes not when its institutions are placed on a pedestal but when they are placed under scrutiny. Let us not be naïve. Let us not pretend that judicial discretion is divine when its outcomes are political. Today, India needs a strong judiciary to sustain itself as the world’s largest democracy and global trendsetter in all domains, including speedy delivery of justice. However, the strength of the judiciary must not be borne from opaqueness but openness. It should come from institutional humility and realising that criticism is not sabotage but service in a democracy. The Vice-President asked: “Where are we heading?” A fair question—and one we must not ignore. If we cannot question the judiciary today, we may not be allowed to question anything tomorrow. As citizens, we owe it to our Constitution and future generations to ensure that all branches of government, including the one wielding the gavel, remain answerable to the people they serve.
* Prof Santishree Dhulipudi Pandit is the Vice Chancellor of JNU.