The Supreme Court's Unavoidable Role: Guarding Democracy When Executive and Legislature Falter

Editorial Summary As executive and legislative actions increasingly encroach on constitutional guarantees — electoral integrity, federal balance, free speech, minority rights — the Supreme Court bears a principal responsibility for preserving public faith in democratic institutions. This role is not an exception but an emerging structural feature, and one that carries both democratic promise and institutional risk.

The Pattern — Three Case Clusters

Electoral Integrity

The most consequential democracy-protection judgment of recent years was Association for Democratic Reforms v. Union of India (February 2024) — the Electoral Bonds case. A 5-judge Constitution Bench unanimously struck down:

• Electoral Bonds Scheme (2018) — anonymous purchase of bearer bonds from SBI, redeemable by registered political parties
• Amendments to the Companies Act (removing corporate donation caps)
• Amendments to the Income Tax Act (exemption from disclosure)
• Amendments to the FCRA (allowing foreign company donations)
• Amendments to the Representation of the People Act (exemption from donation disclosure)

Grounds: Violation of Article 19(1)(a) — the implied “right to know” about political funding sources, held essential to informed voting.

Impact: SBI’s mandated disclosure of bond data revealed a pattern: corporations facing ED/income tax investigations disproportionately purchased bonds favouring certain parties; many purchasing companies received government contracts soon after. The disclosure became a structural check on political finance opacity.

Federal Balance — Governors’ Conduct

State of Punjab v. Punjab Governor (2023) and State of Tamil Nadu v. Tamil Nadu Governor (2024) addressed a pattern where opposition-state Governors were withholding assent to state bills indefinitely — sometimes for years — without either returning them for reconsideration (as required under Article 200) or giving assent.

The Court held:

• Under Article 163, the Governor acts on the “aid and advice” of the Council of Ministers — discretion is limited to specific constitutional contingencies
• Indefinite delay of assent violates the constitutional structure of state governance
• Reasonable timeline — the Court imposed a 3-month guideline for Governor’s decisions on bills

Impact: Rebalanced the federal structure by constraining gubernatorial discretion. Critics argued this reduces the Governor’s role as a constitutional sentinel; supporters noted the Governor is not meant to be an unchecked veto.

Free Speech

Shreya Singhal v. UoI (2015) — struck down Section 66A of the IT Act as unconstitutionally vague.

S.G. Vombatkere v. UoI (2022) — Supreme Court held the colonial-era sedition law (Section 124A IPC) in abeyance, pending Parliament’s review. The government has now tabled the Bharatiya Nyaya Sanhita (BNS) 2023 with modifications — but the Court-Parliament dialogue demonstrates the Court’s pre-emptive check.

Kunal Kamra v. UoI (2024) — Bombay High Court struck down the Fact Check Unit (FCU) notification under the IT Rules amendment, on Article 19(1)(a) grounds; Supreme Court stayed the reinstatement.

Why This Has Become Structural

Parliamentary Majorities and Executive Overreach

The Constitutional design assumed independent legislative scrutiny of executive action. In parliamentary majorities of the current scale, several traditional accountability mechanisms have weakened:

Where traditional accountability weakens, constitutional challenges become the principal check. This is not an argument against parliamentary democracy — it is an argument for strengthening it.

Ambedkar’s Warning — Constitutional Morality

Dr B.R. Ambedkar, in the Constituent Assembly (November 25, 1949), warned that:

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”

The “top-dressing” metaphor captures the concern: formal constitutional institutions can survive and nominally function even while democratic substance weakens. In that environment, the Supreme Court’s guardianship becomes the last structural check — but a fragile one if popular democratic culture itself corrodes.

The Costs of Over-Judicialisation

Unelected Judicial Policymaking

Critics (both liberal and conservative) argue:

• Judicial review of policy decisions drifts toward judicial policymaking
• Judges lack democratic legitimacy for distributive decisions
• PIL-driven environmental, infrastructure, and economic rulings substitute for legislative deliberation
• Court orders on Delhi air quality, river pollution, urban master plans — technically valid under judicial review but institutionally awkward

Backlog and Capacity

• ~5 crore cases pending across Indian courts (2024 — National Judicial Data Grid)
• Supreme Court alone: ~80,000 pending matters
• Average disposal time at SC: 3-5 years for matters requiring oral hearing
• Constitutional benches (5+ judges) convene infrequently; landmark cases can remain undecided for years

Politicisation Risk

When every contested policy ends in litigation, the judiciary risks becoming perceived as politically-aligned. The NJAC judgment (2015), Ayodhya (2019), Article 370 (2023), and Electoral Bonds (2024) rulings have been praised and criticised along partisan lines — a concerning shift from the historical perception of judicial neutrality.

Comparative — Courts and Democracy

India’s Supreme Court sits at the expansive end of the spectrum — both because of constitutional design (Article 142, writ jurisdiction, PIL doctrine) and because of institutional need (weakened parliamentary oversight).

What “Guarding Democracy” Actually Requires

Time-Bound Constitutional Adjudication

• Specialised constitutional benches with dedicated rosters
• Hearing-day targets — 30-60 days for listed constitutional matters
• Reducing interim relief delays in free-speech and electoral matters (where delay is itself the harm)

Stronger Parliamentary Committees

• Mandatory committee referral for bills above a complexity/impact threshold
• Committee reports with government response timelines
• Pre-legislative consultation standards

Civil Society and Electoral Vigilance

• Sustained public engagement on democracy issues beyond election cycles
• Media accountability on institutional degradation (not just personalities)
• Electoral commissions’ own accountability under judicial review

The Limits of Court-Led Democracy Protection

Three structural limitations the Court cannot overcome:

1. Enforcement gap — Court orders depend on executive compliance; contempt powers are rarely used against state entities
2. Capacity gap — Court has neither the resources nor the legitimacy to replace democratic deliberation
3. Legitimacy cost — Over-reliance on Court protection erodes the Court’s own institutional credibility

The Supreme Court can strike down bad laws; it cannot force Parliament to make good ones. It can hold Governors accountable; it cannot make opposition parties electorally competitive. It can protect free speech; it cannot create a culture of free inquiry.

The Responsibility That Cannot Be Refused

Despite these limits, the Court cannot step back. Its constitutional role — interpreting the Constitution, protecting fundamental rights, resolving federal disputes — makes it the final institutional forum when others fail. The phrase “last guardian” describes institutional reality, not aspiration.

But “last guardian” should remain a reserve role, not a first-response one. The path back to institutional balance runs through a stronger Parliament, a more accountable executive, an active civil society, and a vigilant electorate. Until those shifts occur, the Court will carry a load larger than any single institution should bear.

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