Abusing the Judicial Review Process

The Rajya Sabha gave its seal of approval to the Waqf (Amendment) Bill, 2025 in the wee hours of Thursday morning. A day earlier, the Lok Sabha burnt midnight oil and passed the Bill on Wednesday. Both Houses witnessed a lengthy and fulsome debate on the Bill, a rather unusual event as Parliament is prone to disruption by Opposition members these days. Even before that, the Bill was debated at length–for more than five months–in the Joint Parliamentary Committee (JPC).

Even before the ink had dried on the passage of the Bill, some political parties and Members of Parliament (MPs) approached the Supreme Court, challenging the “constitutional validity” of the Bill. The Bill passed by Parliament received the President’s assent on Saturday while the first MP approached the apex court on Friday.

There are plenty of questions on this and similar moves to the Supreme Court against Bills passed by Parliament.

For starters, it is questionable if judicial review can be applied at such an early stage, even before a “law” has received the President’s assent. There is a liminal phase between the passage of a Bill by Parliament and its becoming a law, just before it has received President’s assent. The approach to the Supreme Court was made during that phase.

Then, there is the question about the “right” time for judicial review. Once upon a time, resort to such review would take place after the defects and infirmities of a law became apparent through its working in real life. Often, this took years before aggrieved parties moved courts for judicial review. In the instant case, that process has now been short-circuited to mere 24 hours.

There is yet another, broader, question. The parties and MPs who have petitioned the apex court were participants in the debate and proceedings in Parliament. When they could not prevail there as they lacked the numbers to prevent the passage of the Bill, they have chosen a different forum to block the law. This raises grave questions about the nature of judicial review in India. In theory, judicial review is supposed to be a non-political process where courts examine the constitutional validity of a law by subjecting it to a series of judicial tests. In practice, however, the gap between the technical, judicial, aspect of the process and its abuse for political ends has been reduced to a dangerously narrow level. When the Supreme Court is approached within 24 hours by the losing parties in Parliament, “judicial review” is an outright fiction.

What is troubling is that the apex court readily accepts such petitions for listing and gives them a hearing. When it does that, it acts in the nature of a “super Parliament” where the actual applicability and survival of a law is decided instead of the normal setting for that process, the Parliament. Should the courts even engage in such practices?

Finally, this episode raises questions about India’s democracy and its politics. Democratic politics rests on one key pillar: the ability of the losing side to swallow things that are not to its liking. If a particular law is unpalatable to the Opposition, it has only one course available to it: convince the people of India that the law is bad in form and content and wait for its chance to repeal it when it comes to power. Not doing so violates this basic tenet of democracy.
The danger here is that judicial interventions in the legislative and executive domains will only breed lawlessness instead of fortifying the rule of law. Hopefully the learned judges of the apex court will pause and think about the consequences of such quick resort to “judicial review.”

2025Indian politicsJudicial ActivismJudicial reviewOppositionParliamentWaqf (Amendment) BillWeb Exclusive