The past week has seen the Supreme Court of India come under both praise and criticism for its pronouncement in State of Tamil Nadu v. Governor, on various legal and political grounds. While the case dealt with a situation wherein directions were issued touching directly upon the constitutional role of the Governor and even the President for that matter, many critiques, from comments under social media posts to outspoken views of those occupying the highest executive offices, were dissatisfied with the judgement. Critics argued that such judicial intervention under the wide canopy of Article 142 constitutes overreach and represents an instance of the judiciary assuming the role of the legislature or the executive. Yet others hailed the ruling as a necessary constitutional response to institutional inertia, particularly where federal equilibrium and democratic accountability are at stake. But from the criticism, one question that intrigued me was this: Is the Supreme Court inhibited from scrutinising the actions of constitutional figureheads simply because they occupy the topmost positions? Or is such judicial review beyond the scope of constitutional limits?

To assess the constitutional legitimacy of such exercises of judicial power, it is important to revisit the origins and framework of Article 142. Introduced as Draft Article 118, it was adopted without any discussion on 27 May 1949. The silence surrounding it in the Constituent Assembly was simply an indication of broad consensus. When read in conjunction with the transcripts from other debates, particularly those relating to the establishment and independence of the Supreme Court, the framers' intent becomes clear. They envisioned a powerful and effective judiciary equipped with the means to render complete justice in cases where the strict application of law might fall short. This was not a blueprint for judicial minimalism but rather a recognition of the judiciary's central role in safeguarding the Constitution. The inclusion of Articles 138 and 140, which empower Parliament to expand the Court's jurisdiction and confer additional functions, further reinforces the flexibility that the framers intended to imbue within the judicial branch of the State.

Importantly, the idea of the judiciary adjudging the actions of constitutional authorities including the President and Governors is not without precedence. In S R Bommai v. Union of India, the Supreme Court subjected presidential proclamations under Article 356 to judicial review, thereby placing limits on the President's discretion. In Epuru Sudhakar v. Government of Andhra Pradesh, the Court held that the clemency powers under Articles 72 and 161 are subject to judicial scrutiny, particularly when tainted by mala fides or arbitrariness. In Shatrughan Chauhan v. Union of India, the Court addressed executive delays in deciding mercy petitions and affirmed that constitutional duties in this context are not discretionary when they implicate the right to life under Article 21. These judgments illustrate that even the actions of the President and Governor, despite the stature they hold, are not immune from constitutional accountability.

There is no need for me to elaborate further on the principles of judicial review or the scope of justiciability. The decision in State of Tamil Nadu v. Governor already provides a detailed and authoritative account of these aspects. To revisit the earlier question on whether the Supreme Court can scrutinise constitutional figureheads, a comparative look at how other democracies have approached this issue may offer clarity.

A notable example can be found in the United Kingdom Supreme Court's decision in R (Miller) v. Prime Minister. Delivered at the height of the Brexit crisis, the Court ruled that the Prime Minister's advice to the Queen to prorogue Parliament was justiciable, and that the subsequent prorogation was unlawful and void. In doing so, the Court reaffirmed that "the King hath no prerogative, but that which the law of the land allows him", emphasising that the limits of prerogative power are set by law and determined by courts. It was also opined that by ensuring that the powers of prorogation are not unlawfully exercised, the court would be carrying out its proper functions and giving effect to the separation of powers rather than to offend it. While the monarch was not directly held accountable, the reasoning firmly established that judicial oversight extends even to the actions of the Crown.

The argument that the Supreme Court of India is overstepping its institutional bounds merits closer and more nuanced scrutiny. Critics of the judgment fail to appreciate and tend to overlook the constitutional basis on which Article 142 was invoked by it. The Court found that the Governor, whom they observed to be a "shorthand expression for the State Government", had acted with mala fides by withholding assent to bills duly passed by the elected representatives of the State Government, who reflect the will of the people for the duration of their incumbency. While many were quick to clamour that the Court had breached the doctrine of separation of powers by introducing the idea of 'deemed assent', a closer look shows there really was no other workable solution in the face of prolonged inaction. Also, this is not the first time the Court has relied on the idea of 'deemed' satisfaction to uphold the spirit of a constitutional provision — AG Perarivalan v. State is a case in point. Perhaps so, even in this case, the Court recognised that remanding the matter back to the Governor would serve no purpose and would only perpetuate constitutional stagnation. In this context, there remained no other just or effective remedy but to invoke Article 142 to correct the imbalance and restore constitutional order.

It must be understood that Article 142 was deliberately crafted as a constitutional safety valve — a judicial tool intended to ensure that justice is neither denied nor delayed by gaps in legislation or paralysis in executive action. Far from legislating or encroaching, the judiciary, through such orders, is fulfilling its core constitutional function: interpreting the law, enforcing constitutional obligations, and ensuring justice is done in substance and not just in form. In moments when institutional checks falter, Article 142 becomes the Court's means to restore constitutional order, not disrupt it.