17. Polity Notes 29

Elaborate Notes

Evolution of Judiciary: The Rise of Judicial Activism

The evolution of the Indian judiciary can be segmented into distinct phases. The period post-1980 marks a significant shift, often termed the phase of ‘Judicial Activism’. This phase did not emerge in a vacuum but was a product of the prevailing political and social conditions of the time.

• Political Context and the Executive-Legislative Vacuum:
  • Post-Independence Dominance (1947-1967): The Indian National Congress enjoyed unparalleled political dominance at both the Centre and in the states. This era, as described by political scientist Rajni Kothari in “The Congress System in India” (1964), was marked by a high degree of public trust in the political executive to deliver on the promises of the newly independent nation.
  • Decline and Crisis (1967-1980): The period after 1967 witnessed a fragmentation of the Congress system, with opposition parties forming governments in several states. This led to political instability. The imposition of the National Emergency in 1975 by the Indira Gandhi government marked a low point for Indian democracy, severely curtailing fundamental rights and undermining institutional integrity. The subsequent victory of the Janata Party in 1977 was a popular mandate against authoritarianism, but their government was short-lived and collapsed due to internal contradictions.
  • The TINA Factor and Public Disillusionment: By 1980, the Congress returned to power, not necessarily due to a resurgence in its popularity, but because of what political commentators termed the ‘TINA’ (There Is No Alternative) factor. Decades of unfulfilled promises, rising corruption, the politicization of crime, and the criminalization of politics led to widespread public disillusionment with the legislative and executive branches. This created a significant “governance vacuum” or “institutional vacuum.” As per the constitutional framework, this void was progressively filled by the judiciary.

Judicial Activism: Concept and Manifestation

Judicial Activism represents a proactive approach by the judiciary to uphold citizens’ rights and promote justice, often by stepping into areas traditionally reserved for the legislature and the executive.

• Definition and Scope: It signifies the judiciary’s departure from a purely interpretative role to a more participatory one in governance. Jurist Upendra Baxi has described this phenomenon as “Social Action Litigation,” highlighting its role in giving a voice to the marginalized and enforcing the accountability of other state organs. It is essentially the judiciary compelling the executive and legislature to perform their constitutional obligations.
• Judicial Review vs. Judicial Activism:
  • Judicial Review: This is a foundational power, explicitly rooted in the Constitution under Articles 13, 32, 136, and 226. It is primarily a reactive mechanism where the court examines the constitutional validity of a law or executive action after it has been passed or taken. The landmark case of Kesavananda Bharati v. State of Kerala (1973) firmly established judicial review as a part of the ‘basic structure’ of the Constitution, making it unamendable.
  • Judicial Activism: This is a proactive approach. It often originates from judicial review but goes a step further. Instead of merely striking down a law, the activist court may issue guidelines, directives, and commands to the executive. This can lead to what is termed Judicial Legislation, where the court, in effect, creates law to fill a legislative gap. For example, the Minerva Mills v. Union of India (1980) case was a classic instance of judicial review, but it also set the stage for activism by asserting the court’s power to review even the proclamation of a National Emergency on grounds of mala fide intent, thus checking executive overreach.

Public Interest Litigation (PIL): The Instrument of Activism

The primary tool for judicial activism has been the Public Interest Litigation (PIL).

• Dilution of Locus Standi: Before the 1980s, the judiciary strictly adhered to the principle of locus standi, a Latin maxim meaning ‘place to stand’. It stipulated that only a person whose own rights were directly violated could approach the court. This principle acted as a significant barrier for the poor, marginalized, and disenfranchised who often lacked the resources or awareness to seek justice.
• Pioneering Role of Justices Bhagwati and Iyer: In the late 1970s and early 1980s, Justices P. N. Bhagwati and V. R. Krishna Iyer championed the concept of PIL. They argued that in a country with widespread poverty and ignorance, procedural technicalities like locus standi should not impede access to justice. In S.P. Gupta v. Union of India (1981), often called the First Judges’ Case, Justice Bhagwati articulated the philosophy of PIL, stating that any member of the public acting in good faith could approach the court on behalf of those whose rights were being violated. He famously demonstrated this by treating a simple postcard highlighting the plight of undertrial prisoners in Bihar as a writ petition in the Hussainara Khatoon v. State of Bihar (1979) case, which led to the release of over 40,000 prisoners.

Performance and Evolution of PIL

• The 1980s: Focus on Civil and Political Rights:

  • The initial wave of PILs focused on the rights of the deprived and oppressed.
  • Asiad Workers Case (1982): In People’s Union for Democratic Rights v. Union of India, a PIL was filed regarding the sub-standard working conditions of laborers constructing facilities for the 1982 Asian Games in Delhi. The Supreme Court held that the non-payment of minimum wage was a violation of Article 23 (right against forced labour).
  • Prisoners’ Rights: The Supreme Court passed several judgments to improve the inhuman conditions in prisons and protect inmates from torture and abuse, establishing that prisoners do not lose their fundamental rights.
  • Fake Encounters: The judiciary ruled that state officials, including the police, do not enjoy sovereign immunity for extra-judicial killings and that the state is liable to pay compensation to the victims’ families.
  • Shriram Foods and Fertilizers Industries v. Union of India (1986): Following an oleum gas leak, the Court established the principle of ‘absolute liability’ for industries engaged in hazardous activities, a significant step in environmental jurisprudence.

• The 1990s: Expansion to Socio-Economic and Cultural Rights:

  • This decade coincided with India’s Liberalisation, Privatisation, and Globalisation (LPG) reforms. PILs began to address issues arising from this new economic paradigm, focusing on protecting workers, tribals, and the environment from corporate exploitation.
  • Indra Sawhney v. Union of India (1992): The Court upheld the 27% reservation for Other Backward Classes (OBCs) but introduced the concept of the “creamy layer” to exclude the affluent among them.
  • S.R. Bommai v. Union of India (1994): The Court checked the misuse of Article 356 (President’s Rule) by ruling that the proclamation is subject to judicial review and that the test of a government’s majority must be conducted on the floor of the House.
  • Jain Hawala Case (Vineet Narain v. Union of India, 1997): The SC gave directives to ensure the independence of the Central Bureau of Investigation (CBI) and recommended statutory status for the Central Vigilance Commission (CVC).
  • Vishaka v. State of Rajasthan (1997): In a landmark example of judicial legislation, the Court, noting the absence of any law on the subject, laid down comprehensive guidelines to prevent sexual harassment of women at the workplace. It declared that these guidelines would be treated as law until Parliament enacted a specific legislation.

• The 2000s and Beyond: Deepening Intervention:

  • The scope of PIL expanded exponentially, with the judiciary intervening in matters of governance, environment, and policy.
  • Environment: In M.C. Mehta v. Union of India, a series of judgments led to directives such as the mandatory shift to CNG for public transport in Delhi to curb air pollution. The Right to a healthy environment, including safe drinking water, was interpreted as an integral part of the Right to Life under Article 21.
  • Governance and Corruption: The Supreme Court cancelled 214 coal block allocations in the Coal Allocation Case (2014), citing arbitrariness and illegality. It struck down the appointment of a CVC for not adhering to the institutional integrity requirements laid down in the Jain Hawala case.
  • State Policy: In Nandini Sundar v. State of Chhattisgarh (2011), the Court declared the deployment of tribal youth as Special Police Officers (in Salwa Judum) to be unconstitutional, stating that maintaining law and order is the exclusive domain of the state and cannot be privatized.
  • The judiciary has also prodded the executive on complex policy issues, such as in the Jharkhand Assembly Case (2005) where it ordered the Speaker to conduct a floor test, and in another instance, asked the executive to explore the feasibility of the interlinking of rivers.

Misuse of PIL and Judicial Overreach

While PIL has been a powerful tool, its liberal use has led to criticism and charges of misuse and judicial overreach.

• Frivolous Litigation: PILs have been filed for publicity, private gain, or to settle political scores (e.g., a PIL seeking a re-vote after the A.B. Vajpayee government fell by one vote in 1999).
• Judicial Overreach: Critics argue that the judiciary, by entering into the exclusive domains of the legislature and executive, violates the principle of separation of powers.
  • Directing the executive to explore a massive policy project like the interlinking of rivers or repeatedly urging the legislature to enact a Uniform Civil Code (UCC) are cited as examples of the judiciary stepping beyond its constitutional mandate.
  • Such interventions can be problematic as the judiciary lacks the technical expertise, financial resources, and popular mandate to formulate and implement complex policies.

Weaknesses and Challenges in the Indian Judiciary

Despite its activist role, the judiciary itself is beset with several deep-rooted problems.

• Pendency of Cases: This is the most significant challenge. As of 2023, the backlog across all courts is nearly 5 crore cases. At the current disposal rate, it would take centuries to clear this backlog, undermining the adage “justice delayed is justice denied.”
• Judicial Corruption and Accountability:
  • The impeachment process for judges of the higher judiciary (under Article 124(4)) is extremely rigid and politically contingent. No judge has ever been successfully impeached in India’s history (e.g., the motion against Justice V. Ramaswami in 1993 failed in the Lok Sabha).
  • This near-absence of a robust accountability mechanism creates a perception of immunity.
• Appointment of Judges (The Collegium System):
  • The current system of appointment, a product of the Second Judges Case (1993) and Third Judges Case (1998), is known as the Collegium System. It has been heavily criticized for being opaque, non-transparent, and fostering the “Uncle’s Judge Syndrome,” where nepotism and patronage allegedly play a role. It is argued that a few hundred families have dominated appointments to the higher judiciary. The attempt to replace it with the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment was struck down by the Supreme Court in the Fourth Judges Case (2015) on the grounds that it violated the independence of the judiciary, a part of the basic structure.
• Colonial Practices: The judiciary continues to follow practices inherited from the British era, such as long vacations (summer and winter) and the use of honorifics like “My Lord,” which are seen as anachronistic in a modern republic.
• Lack of Representation: The higher judiciary lacks social diversity. There is a significant under-representation of women, Scheduled Castes, Scheduled Tribes, and other marginalized communities, raising questions about its representative character. To date, India has not had a woman Chief Justice.
• Politicization of the Judiciary: The growing trend of judges accepting post-retirement appointments in government-controlled tribunals or as Governors raises serious questions about pre-retirement judgments and the independence of the judiciary. This is often described as the emergence of an “Executive Judiciary.”

Proposed Judicial Reforms

• Tackling Pendency:
  • Increase the judge-to-population ratio. The Law Commission of India has recommended a ratio of 50 judges per million people, whereas India currently has around 21, with many positions vacant.
  • Establish Regional Benches of the Supreme Court as suggested by the Law Commission to increase access to justice.
  • Create a separate Constitutional Bench in the Supreme Court at Delhi to deal exclusively with matters of constitutional interpretation, while appellate work is handled by regional benches.
• Reforming Appointments:
  • The debate over the Collegium vs. a revised NJAC continues. A more transparent and accountable mechanism that balances judicial independence with executive and public participation is needed.
  • The creation of an All India Judicial Service (AIJS) for the subordinate judiciary is often proposed to attract talent and ensure standardized recruitment and training.
• Ensuring Accountability and Efficiency:
  • Introduce performance audits for judges, possibly through a mechanism involving various stakeholders like lawyers, litigants, and civil society.
  • Curtail long judicial vacations and modernize court procedures using technology.
  • Address the “Uncle’s Judge Syndrome” by incorporating principles of diversity and positive discrimination in appointments to make the judiciary more representative.

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Prelims Pointers

• Minerva Mills Case (1980): Supreme Court held that the proclamation of a National Emergency is subject to judicial review on the grounds of mala fide intention.
• Judicial Activism: Arose prominently in the 1980s in response to a perceived ‘legislative and executive vacuum’.
• Public Interest Litigation (PIL): A mechanism that relaxed the traditional rule of Locus Standi.
• Pioneers of PIL: Justice P. N. Bhagwati and Justice V. R. Krishna Iyer.
• Hussainara Khatoon v. State of Bihar (1979): Widely regarded as the first major PIL case in India, dealing with the rights of undertrial prisoners.
• People’s Union for Democratic Rights v. UoI (1982): Known as the Asiad Workers Case; interpreted non-payment of minimum wages as a form of forced labour under Article 23.
• S.R. Bommai v. UoI (1994): Curtailed the misuse of Article 356; made its proclamation subject to judicial review.
• Indra Sawhney v. UoI (1992): Upheld OBC reservation and introduced the “creamy layer” concept.
• Vishaka v. State of Rajasthan (1997): SC laid down guidelines against sexual harassment at the workplace, which were to be treated as law. This is a prime example of judicial legislation.
• Jain Hawala Case (Vineet Narain v. UoI): Led to SC directives for the autonomy of CBI and statutory status for the CVC.
• National Judicial Appointments Commission (NJAC): Introduced via the 99th Constitutional Amendment Act; struck down by the Supreme Court in the Fourth Judges Case (2015).
• Master of the Roster: A term referring to the administrative power of the Chief Justice of India to constitute benches and allocate cases.
• Recommended Judge-to-Population Ratio: 50 judges per million people (as per the Law Commission of India).
• All India Judicial Service (AIJS): A proposed service for recruitment of judges at the level of Additional District Judges and District Judges for all states.

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Mains Insights

1. Judicial Activism: A Necessary Corrective or a Trespass on Separation of Powers?

• As a Necessary Corrective:
  • Filling Governance Gaps: Judicial activism has been crucial in situations where the executive and legislature have failed to act, for instance, in environmental protection (CNG directive) and protecting human rights (undertrials, bonded labour).
  • Upholding Constitutional Morality: The judiciary has often stepped in to protect the rights of marginalized groups and enforce constitutional principles against popular or majoritarian politics.
  • Enforcing Accountability: PILs and activist judgments (e.g., Coal Scam, 2G Scam) have forced accountability on the executive, which might have otherwise gone unchecked.
• As a Trespass (Judicial Overreach):
  • Violation of Separation of Powers: Critics argue that by engaging in policy-making (e.g., interlinking of rivers) and legislation (Vishaka Guidelines), the judiciary encroaches upon the domains of the legislature and executive, disturbing the delicate constitutional balance.
  • Lack of Expertise and Legitimacy: Judges are legal experts, not technocrats or policy specialists. Judicial interventions in complex policy matters can lead to sub-optimal outcomes. Moreover, unlike the legislature, the judiciary is not a popularly elected body and lacks direct democratic legitimacy for law-making.
  • Risk of Populism: There is a danger of the judiciary using activism to deliver populist judgments, which may not be legally sound or practically implementable, leading to a “tyranny of the unelected.”

2. The Collegium Debate: Independence vs. Accountability

• Arguments for the Collegium System:
  • Ensures Judicial Independence: It is seen as a bulwark against executive interference in judicial appointments, thereby protecting the judiciary’s ability to act as a check on the government without fear or favour. The Supreme Court’s reasoning in the Fourth Judges Case was primarily based on this principle.
  • Expertise in Selection: Judges are best placed to evaluate the professional competence, integrity, and judicial temperament of candidates for judgeship.
• Arguments Against the Collegium System (for a reformed process like NJAC):
  • Opacity and Lack of Transparency: The process is shrouded in secrecy, with no clear criteria for selection, leading to allegations of nepotism and the “Uncle’s Judge Syndrome.”
  • Lack of Accountability: The system is a closed loop (“judges appointing judges”) with no external accountability or public scrutiny.
  • Erodes Democratic Principles: In a democracy, the appointment to such high constitutional offices should have some input from the elected representatives of the people. The NJAC model sought to incorporate this principle.

3. The Paradox of an ‘Activist’ yet ‘Ailing’ Judiciary

• Cause-Effect Relationship: The judiciary’s activism, while celebrated for holding other branches accountable, has also diverted its attention and resources from its core function of adjudicating disputes. The floodgates of PIL have contributed, to some extent, to the mounting pendency of cases.
• Credibility Crisis: While the judiciary critiques corruption and inefficiency in other organs, it faces similar challenges internally (pendency, corruption allegations, lack of accountability). This internal weakness undermines its moral authority to sermonize others.
• The Way Forward: Judicial reforms must be holistic. While strengthening the judiciary’s role as a watchdog, internal reforms related to appointments (transparency), accountability (a robust internal mechanism), efficiency (tackling arrears), and accessibility (reducing costs) are equally critical for sustaining its legitimacy and effectiveness.

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Previous Year Questions

Prelims

1. With reference to India, consider the following statements: (UPSC 2021)

   1. Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in jail.
   2. During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: (b) Explanation: In judicial custody, the accused is sent to jail, under the custody of a magistrate. In police custody, the accused is kept in a police station lock-up. Statement 2 is correct.

2. A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of application of law violates which one of the following Articles of the Constitution of India? (UPSC 2021) (a) Article 14 (b) Article 28 (c) Article 32 (d) Article 44 Answer: (a) Explanation: Article 14 guarantees equality before the law and equal protection of the laws. The Supreme Court has interpreted this to mean that any law granting arbitrary and uncontrolled power is a violation of equality.

3. What is the position of the Right to Property in India? (UPSC 2021) (a) Legal right available to citizens only (b) Legal right available to any person (c) Fundamental Right available to citizens only (d) Neither Fundamental Right nor legal right Answer: (b) Explanation: The Right to Property was removed as a Fundamental Right by the 44th Amendment Act, 1978, and made a constitutional/legal right under Article 300-A. This right is available to any person, not just citizens.

4. In India, separation of judiciary from the executive is enjoined by (UPSC 2020) (a) the Preamble of the Constitution (b) a Directive Principle of State Policy (c) the Seventh Schedule (d) the conventional practice Answer: (b) Explanation: Article 50 of the Constitution, which is a Directive Principle of State Policy, states that “The State shall take steps to separate the judiciary from the executive in the public services of the State.”

5. Consider the following statements: (UPSC 2019)

   1. The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review.
   2. The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of the judiciary. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: (b) Explanation: Statement 1 is incorrect; it was the 39th Amendment Act, 1975, that sought to place the election of the PM beyond judicial review, which was struck down in the Indira Gandhi v. Raj Narain case. Statement 2 is correct; the 99th Amendment (NJAC Act) was struck down by the Supreme Court in 2015.

Mains

1. “The Supreme Court of India has become a ‘court of appeals’ rather than a ‘constitutional court’.” Do you agree? Give reasons in support of your answer. (UPSC 2024 - Mock/Expected theme)

   • Answer Framework:
     • Introduction: Explain the intended role of the Supreme Court as primarily a constitutional court as envisaged by the framers, responsible for interpreting the Constitution and settling federal disputes.
     • Arguments for SC acting as a Court of Appeals:
       • Mention the wide appellate jurisdiction under Articles 132, 133, 134, and especially the liberal use of Special Leave Petitions (SLP) under Article 136.
       • Cite data on the high percentage of SLPs and appeals compared to constitutional cases.
       • Discuss how this caseload contributes to the huge backlog and delays constitutional matters.
     • Arguments for SC retaining its role as a Constitutional Court:
       • Highlight landmark constitutional judgments (Kesavananda Bharati, S.R. Bommai, Puttaswamy) that have shaped Indian polity and law.
       • Mention its role as the ultimate guarantor of Fundamental Rights through Article 32.
       • Discuss its function in adjudicating federal disputes.
     • Way Forward: Suggest reforms like creating a National Court of Appeal or regional benches of the Supreme Court to handle appellate work, as recommended by the Law Commission, allowing the principal bench in Delhi to focus exclusively on constitutional matters.
     • Conclusion: Conclude that while the SC has delivered landmark constitutional judgments, its workload is overwhelmingly dominated by appellate matters, necessitating structural reforms to reinforce its primary role as a constitutional court.

2. Critically examine the role of Public Interest Litigation (PIL) in upholding the rights of the marginalized. Has it now digressed from its original path? (UPSC 2023 - Mock/Expected theme)

   • Answer Framework:
     • Introduction: Define PIL and its genesis in the 1980s as a tool to provide access to justice for the poor and marginalized by relaxing the rule of locus standi.
     • Positive Role of PIL:
       • Provide examples of how PIL has been instrumental: rights of undertrials (Hussainara Khatoon), bonded labourers, child labourers, and environmental protection (M.C. Mehta cases).
       • Explain how it transformed Fundamental Rights from passive rights to positive obligations on the state.
     • Digression from Original Path:
       • Discuss the rise of frivolous PILs for publicity (“Publicity Interest Litigation”).
       • Mention instances of PILs being used for corporate or political rivalries.
       • Explain the problem of judicial overreach where courts delve into policy matters through PILs, for which they lack competence.
       • Note how the sheer volume of PILs has added to the judicial backlog.
     • Conclusion: Acknowledge that while PIL has been a revolutionary tool for social justice, its misuse and the tendency towards overreach are serious concerns. The judiciary needs to exercise self-restraint and develop stricter mechanisms to filter out frivolous petitions to preserve the sanctity of this vital instrument.

3. “The collegium system for the appointment of judges, though intended to secure judicial independence, has been criticized for its opacity and lack of accountability.” Discuss. (UPSC 2022 - Mock/Expected theme)

   • Answer Framework:
     • Introduction: Briefly explain the evolution of the collegium system through the Three Judges Cases.
     • Arguments for Collegium (Securing Independence): Explain how the system insulates judicial appointments from executive influence and political pressure, which is crucial for the rule of law and checking government power.
     • Criticisms (Opacity and Lack of Accountability):
       • Opacity: Describe the secretive nature of its functioning, with no formal criteria for selection made public.
       • Nepotism: Elaborate on the “Uncle’s Judge Syndrome” and allegations of favouritism.
       • Lack of Diversity: Point out the underrepresentation of women and marginalized sections in the higher judiciary.
       • Accountability: Explain that it is a system of “judges appointing judges,” lacking any external checks and balances.
     • The NJAC Episode: Briefly discuss the 99th Amendment and NJAC as an attempt to reform the system and why the SC struck it down.
     • Conclusion: Conclude by stating the need for a balanced approach that preserves judicial independence while infusing transparency and accountability into the appointment process, perhaps through a reformed collegium or a new mechanism with wider consultation but with the primacy of the judiciary intact.

4. Do you think that the Constitution of India does not accept the principle of strict separation of powers rather it is based on the principle of ‘checks and balances’? Explain. (UPSC 2019)

   • Answer Framework:
     • Introduction: Define the concept of strict separation of powers (as in the US) and the principle of checks and balances. State that India follows the latter.
     • Evidence of Separation of Functions (not powers):
       • Legislature (Parliament) makes laws.
       • Executive (Government) implements laws.
       • Judiciary (Courts) interprets laws and adjudicates disputes.
       • Mention constitutional provisions like Article 50 (separation of judiciary from the executive).
     • Evidence of Checks and Balances (Overlapping Functions):
       • Judiciary over Legislature/Executive: Judicial Review (Art 13, 32), striking down laws, and reviewing executive actions. Judicial activism is a key example.
       • Legislature over Judiciary/Executive: Impeachment of judges, removal of the President. Controls the purse (financial control). No-confidence motion against the executive.
       • Executive over Judiciary/Legislature: Appointment of judges. President’s assent for bills. Ordinance making power (Art 123).
     • Conclusion: Conclude that the Indian Constitution creates a system of separated functions but with significant overlaps, establishing an intricate web of checks and balances to prevent any single organ from becoming too powerful, thus ensuring a democratic and accountable governance structure.

5. Resorting to ordinances has always been controversial. On grounds of judicial review, the Supreme Court was argued that the ordinance issuing power is subject to judicial review and could be struck down. In this context, elaborate what are the concerns with the issue of ordinances by the executive as a substitute for legislation by the Parliament. (UPSC 2024 - Mock/Expected theme)

   • Answer Framework:
     • Introduction: Explain the constitutional provision for ordinances (Article 123 for President, Article 213 for Governor) as an extraordinary power to be used when the legislature is not in session and immediate action is required.
     • Judicial Stand on Review of Ordinances:
       • Mention the R.C. Cooper v. Union of India (1970) case, where the SC held that the President’s satisfaction can be questioned on grounds of mala fide.
       • Detail the D.C. Wadhwa v. State of Bihar (1987) case, where the SC condemned the ‘ordinance raj’ in Bihar and termed the re-promulgation of ordinances without placing them before the legislature a fraud on the Constitution.
       • Cite the Krishna Kumar Singh v. State of Bihar (2017) case, which affirmed that the ordinance-making power is subject to judicial review and does not create permanent rights.
     • Concerns with Misuse of Ordinances:
       • Bypassing Democratic Debate: Ordinances circumvent the legislative process of debate, discussion, and scrutiny, which is the hallmark of a parliamentary democracy.
       • Violation of Separation of Powers: It is an executive encroachment on the primary law-making function of the legislature.
       • Tool for Undemocratic Governance: Frequent use, especially to pass controversial laws, undermines the supremacy of the legislature.
       • Re-promulgation: The practice of re-issuing ordinances without legislative approval is a direct contravention of constitutional norms.
     • Conclusion: Conclude that while the ordinance-making power is a necessary tool for emergencies, its frequent misuse as a substitute for legislation is a threat to democratic principles. The judiciary’s stance on subjecting this power to judicial review is a crucial check to prevent its abuse and uphold constitutionalism.