Fragile balance of powers: Judicial overreach and the larger institutional anxiety

Montesquieu warned that liberty withers the moment the power to govern, to enforce and to adjudicate merge in the same hands. Constitutional democracies absorbed that lesson long ago. The Indian Constitution entrenched it. Our courts have repeatedly affirmed it. And yet, every now and then, we must remind ourselves: separation of powers is not an academic slogan; it is the first principle of the Indian Republic.

The controversy surrounding the recent Madras High Court orders on the lighting of the Karthigai Deepam atop the Thiruparankundram hill is not merely a parish disagreement over ritual practice. It is a constitutional moment, because it compels us to reflect - calmly, firmly and without sentimentality on what judicial power is and, equally, on what judicial power is not.

In Marbury v. Madison, Chief Justice Marshall famously asserted the power of judicial review. Jefferson was enraged and sought to impeach Justice Samuel Chase. He failed, not because Chase was universally admired, but because constitutional democracies understand that while courts may invalidate laws, they cannot be punished for doing so.

But the converse is equally important: judicial independence is not a cloak for judicial adventurism. No judge, however high his office, is authorised to substitute personal conviction for legal reasoning, or to foray into the executive’s terrain with a sweep of the pen.

In the Thiruparankundram episode, three features stand out with startling clarity:

First, the order effectively inaugurated a new religious practice - lighting a deepam on a survey-marker stone pillar never used for ritual in over a century. Courts may protect customs; they cannot manufacture them.

Second, the direction requiring the Central Industrial Security Force (CISF) to escort individuals performing a religious act marks an extravagant extension of judicial remit. Deployment of Central forces is an executive matter rooted in statute and national security protocols, not judicial enthusiasm. Otherwise, even the Border Security Force could be directed to register an FIR.

Third, the haste of implementation and the impatience with administrative processes conveyed the impression that enforcement mattered more than legality. Courts must be swift; they must not be coercive where constitutional balance demands deliberation.

These oversteps would have remained a troubling, but isolated instance of overreach were it not for the larger institutional anxieties that now surround the Madras High Court.

For months now, the legal fraternity in Tamil Nadu has expressed dismay about the proposed elevations from the Bar to the Bench. Several bar associations have alleged that those recommended are individuals with proximity to the Union ruling party and its affiliate organisations. Political loyalty, they fear, is becoming an unstated qualification for judicial office.

One need not indulge in conspiratorial thinking to recognise the danger. AG Noorani would have reminded us - drawing from the fate of judiciaries in Pakistan, Sri Lanka and even India under Emergency - that institutions rarely collapse overnight. They erode gradually, almost imperceptibly, through appointments engineered for pliancy, ideological compatibility, or convenient silence.

It is here that a deeper concern emerges; one that goes beyond individual names and touches the very soul of the constitutional commitment to social justice. The judicial institution, many fear, is beginning to crawl toward one political ideology, leaving fairness and social justice at bay.

Recent data reveals a stark imbalance: between 2018 and November 2025, a total of 841 judges were appointed to the High Courts. Of these, only 103 belonged to the Other Backward Classes (OBCs), a mere 32 to the Scheduled Castes (SCs) and just 17 to the Scheduled Tribes (STs). There were only 46 appointments from the minority communities. During the same period, 129 women were appointed as High Court judges. An improvement, yet still far from reflective of the nation’s demographic realities.

These are not just numbers. They are an indictment. They reveal a judiciary whose composition steadily ceases to reflect the constitutional promise of equitable representation and increasingly mirrors the ideological ecology of those who control the levers of elevation.

A judiciary that gradually reflects the values of a ruling class political ideology - particularly one anchored in hierarchy, cultural majoritarianism and graded inequality - inevitably loses the liberal pluralist character on which its legitimacy rests. Once public confidence is lost, the Constitution loses its interpreter and citizens lose their shield.

The fundamental misstep in the Thiruparankundram orders is the assumption - implicit, but unmistakable - that a judge may act as an extra-constitutional authority capable of directing forces, adjudicating ritual practices in a manner that departs from the view of the temple administration, policing the executives and shaping public order. But, in a constitutional framework, a judge is not an executive. He is not a guardian for ceremony. And he is certainly not a cultural arbiter.

The oath of office binds a judge to the Constitution, not to personal belief, not to political ideology and not to a sense of missionary obligation. Judicial independence is precious precisely because it is limited. The less defined the limits, the greater the risk of excess. In short, judicial independence demands that judges safeguard it through responsible conduct.

As Lord Hewart memorably laid down in R v. Sussex Justices:

“Justice must not only be done, but must also be seen to be done.”

That visibility is clouded when judicial conduct appears unmoored from constitutional boundaries.

It is in this broader constitutional context that the INDIA bloc MPs have moved an impeachment motion against the judge in question. The motion may not clear the exacting thresholds required for removal and its sponsors are likely aware of this. Yet, in our parliamentary system, impeachment serves a dual purpose: one punitive, the other expressive. Even if the first function does not succeed, the second remains indispensable.

A failed impeachment is far from futile; it is a legitimate, structured and non-disruptive means of signalling democratic disquiet. It allows Parliament to voice concern over judicial conduct that cannot be ignored, without encroaching on judicial independence. In essence, the motion reminds us that no institution, however exalted, is beyond scrutiny; and that dissent, expressed within constitutional bounds, strengthens democracy rather than weakens it.

At the same time, political actors must exercise restraint. Impeachment is a grave power, to be invoked only in cases of demonstrable misbehaviour, not in response to an unpopular order. A frivolous impeachment can erode confidence just as surely as judicial excess. Yet, neither should judicial impropriety be disguised as virtue. To question the conduct of judges is not to attack the judiciary; it is to uphold its independence. Silence does not fortify courts, deference does not purify institutional inadequacies and looking away does not protect a space for dissent in a democracy.

The Thiruparankundram controversy, the growing unease over Bar-to-Bench elevations and the grim statistics of representation together reveal a deeper ailment: the gradual politicisation of the judicial space. If this trend is not arrested - firmly, transparently, institutionally - we may find ourselves with a judiciary that resembles the political masters more than its constitutional mandate.

Tamil Nadu’s higher judiciary has long been known for its liberal conscience, intellectual honesty and independence of spirit. Its contributions can neither be forgotten nor lightly overlooked. It would be a tragedy if that legacy were to fray under the pressures of ideological patronage, skewed representation or judicial outmanoeuvre.

Montesquieu’s warning still stands: liberty depends not on the might of institutions, but on the modesty with which they exercise power. The Constitution demands such modesty. The Republic deserves it. And the judiciary must exemplify it, especially now.

Dhileepan Pakutharivu is an advocate practicing before the Madras High Court.

The views expressed here are solely personal and should not be attributed in any manner to any professional institutions that the author is affiliated.