Is the judiciary failing to put a check on excesses of the executive?

Published : Aug 28, 2022 12:30 IST “The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.” —Supreme Court in R.K. Jain v. Union of India Courts are expected to defend the constitution. Highlights The power of judicial review is under challenge in India The court has a tendency to evade cases In the few cases that the court did manage to hear, we see an inversion of various settled principles of law The Supreme Court does not have a promising legacy when it comes to declaring criminal laws—especially anti-terror legislation—unconstitutional Penalising litigants is a disturbing signal The Jamiat Ulama-i-Hind moved a petition against the demolitions in U.P. However, this challenge too was brushed aside by the court reasoning that the authorities under the Act are not police officers and hence, “the statements recorded by authorities under the 2002 Act, of persons involved in the commission of the offence of money-laundering or the witnesses for the purposes of inquiry/investigation, cannot be hit by” the fundamental rights of the Constitution. As lawyer Nitya Ramakrishnan argued in an article published in The Wire, this leads to an uncertainty where the officer “may or may not be ‘police’ as chance dictates.” It is worth noting that the Supreme Court does not have a promising legacy when it comes to declaring criminal laws—especially anti-terror legislation—unconstitutional.