Mathews J Nedumpara
8th June 2026.
Our Constitution contemplates the legislature, executive and judiciary to be separate and independent wings of the State with the press as the fourth estate. The power of legislation is vested in the exclusive domain of the legislature. The record of a Parliament binds all, for we all as citizens are party to it, being symbolically present in the Parliament. On the contrary, the record of a court binds only parties who are before it and none else. The constitutional scheme worked well till the judgment of the Supreme Court in Kesavananda Bharati. In all countries with a written constitution, the power of the executive, legislature and the judiciary is clearly defined. The Legislature has no power to enact a law beyond its legislative competence, the province of the Parliament and State legislatures being specifically earmarked.
- Our Constitution also brings in yet another limitation on the power of the legislature. Any law which takes away or abridges fundamental rights, to that extent, is void ab initio. The Courts have the power and the duty to declare as unconstitutional any Act of Parliament which violates Part III of the Constitution. Such power is vested in the civil courts as a court of record of plenary jurisdiction. After the Constitution came into force, by an amendment to the CPC, it made it mandatory for the civil courts to refer issues concerning the constitutionality of a statute or statutory instrument to the High Court.
3.The Supreme Court under Article 32 was vested with a limited jurisdiction to grant 5 writs, namely, writs in the nature of habeas corpus, mandamus, certiorari, prohibition and quo warranto for the enforcement of fundamental rights. The founding fathers were conscious that the Supreme Court cannot be the court of original jurisdiction and that if it were to be so, there would have to be yet another court of appeal. Further, if it were to be a court of original jurisdiction to embark upon any controversy touching upon the violation of fundamental rights, then the Supreme Court would have to be a court of hundreds of judges.
4The Supreme Court which our founding fathers envisaged was not the most powerful court on the planet. It was primarily only a final court of appeal. Only persons who have suffered a legal injury alone could approach the Supreme Court directly invoking Article 32. Right-remedy-forum. Nobody could invoke Article 32 without complaining of violation of a fundamental right. However, Kesavananda Bharati, which has no foundation in jurisprudence but is more of a political statement, completely changed the scenario. After Kesavananda Bharati, busybodies invoke Article 32 asserting that none of our fundamental rights are infringed but the basic structure is. The doctrine of basic structure, though it has no foundation in jurisprudence, was so revered that no judge of the Supreme Court ever thought to ask the Petitioner, ‘if the infringement of the basic structure has not resulted in the violation of your fundamental right, then how does it matter to you?’ and that ‘if your real grievance is that your rights are infringed, why don’t you plead that?’. In all humility, I would say that I am the first person to openly question the folly of the basic structure theory which has been hailed as the greatest innovation of the Supreme Court of India, but for which democracy in India would have perished.
5.The judgment in Kesavananda Bharati was delivered on 4.4.1973. Before the ink had dried, Indira Gandhi on 25.6.1975 imposed Emergency. Fundamental rights were suspended. The basic structure doctrine was interred with its bones. The basic structure doctrine resurrected after the lifting of the Emergency.
6.The Indian judiciary and the legal profession, to some extent, have been feudal. The elite dynasties of lawyers and judges who control the institution have been milking the doctrine since then till date.
7.In 1993, a 9-judge bench of the Supreme Court rewrote the Constitution and usurped to themselves the power of appointment of Judges. They could do so with the support of the elite bar. Shri K. Parasaran, who represented the Government, did not even question the maintainability of the so-called PIL filed by the SCAORA, a body which the elite lobby of lawyers used as a pawn. In 1999, Shri Soli Sorabjee betrayed the Government, which he was representing, by asserting in the Presidential reference that the Government is not seeking any review of the 1993 judgment which was a coup d’état.
8.Since Shri Rajiv Gandhi till Shri Narendra Modi in 2014, we mostly had weak minority/coalition governments at the Centre. In 2014, soon after the Modi Government came into power, it sought to dismantle the collegium by amending the Constitution and creating the NJAC. But the elite caucus, dynasties of lawyers and judges, sabotaged the Government’s efforts by means of a PIL at the hands of SCAORA, a tool. Shri Mukul Rohatgi, then AG, certainly wanted to protect the interests of the Government he represented. However, he did not have the courage to question the maintainability of the PIL. Otherwise, I believe he would have certainly done so. I wrote to him, and so too to the Prime Minister, Law Minister, and Leaders of the Opposition, to insist on the determination of the maintainability of the writ petition as a preliminary issue. I also insisted that even if a petition which does not involve the violation of fundamental rights is maintainable, it could only be decided as a representative proceeding and that notice should be issued to the bar associations across the width and breadth of the country and the public at large, the real stakeholders. Almost all State Governments were represented by elite lawyers and the so-called seniors, but none of them even questioned the maintainability. Eventually, since I persisted, after quashing the NJAC, notice was issued to the public at large. That is to say, notice was issued after the case was over. Do we call this a charade or a calamity?
8.PIL, as it began, was nothing more than pro bono litigation. It was no new invention. A person or group of persons, such as undertrials who, out of their illiteracy, poverty and like reasons, were unable to approach the court, was allowed to be represented by a person acting pro bono. There was a real person aggrieved whose fundamental right had been violated. The PIL petitioner was only representing him as his agent/attorney. Pro bono litigation, as it started out, is therefore in full conformity with the fundamental principles of jurisprudence. A judgment in a pro bono litigation only bound the parties and none else. Pro bono litigation in no time took on a whole new avatar. Every issue concerning governance and legislative policy all of a sudden became justiciable. And the Supreme Court passed judgments in matters concerning the public at large in proceedings that are not of a representative nature, behind the back of the people of this country who too have a right to be heard in the matter. The Court went on to hold that such judgments are the law of the land in terms of Articles 141, 142 and 144 of the Constitution.
9.The Parliament, which is supreme in the realm of law-making, has been reduced to an inferior tribunal. Acts of Parliament are sought to be “quashed” and such orders are indeed readily granted, for instance, the NJAC. There is yet another jurisprudence — the so-called suo motu PILs and a new species of amicus curiae. Any subject under the sun, the court now takes cognizance of by instituting suo motu PILs and with the aid of amicus curiae who, more often than not, plead according to the view of the court. Judgments are then rendered which are asserted to be the law of the land and binding on the citizens of the country who are not afforded any opportunity to partake in the process.
10.The founding fathers would be turning in their graves over the interpretation given to Articles 141 and 142. Article 141 states that the law declared by the Supreme Court shall be binding on all courts within the territory of India. What is embodied in Article 141 is nothing but — and nothing more than — the concept of precedent. Precedent means the reason for the decision, and reason alone. The strength of the bench and the inter se majority within the bench is of no relevance. However, the said concept is relevant in the realm of res judicata, where even an erroneous decision is binding as between the parties. Contrary to the concept of stare decisis and res judicata, our Supreme Court has developed a new concept of judicial law-making which is solely based on the strength of the bench. No matter how absurd a judgment of a 9-judge bench, it can only be overruled by a still larger bench. In the NJAC case, it was held that the collegium is a ‘basic structure’ and that the Parliament even in its constituent power cannot alter it. The only way to set aside the judgment in the Judges-2 case which birthed the Collegium is then vested solely in the hands of a larger bench.
11.The power under Articles 141, 142 and 144 is now unlimited and infinite. The Supreme Court Bar Association is not the State or instrumentality of the State. It exercises no sovereign legislative, judicial or executive function. It is purely a private body. But its affairs are now controlled by the Supreme Court. The Supreme Court now decides who can stand for elections to the position of President, Vice President, etc.
12.Today, the Chief Justice of India is part of the Committee for appointment of CBI Director. It indeed ruled in Anoop Baranwal v. Union of India that the CJI shall be part of the Committee to elect the Chief Election Commissioner.
13.The usurpation of the province of the executive and legislature, even the subjugation of the bar and the press by the Court, has been going on for so long. The only silver lining is that citizens are now no longer ignorant of the same.