Simply Put: Guardians of the Constitution
Amid continuing nationwide student protests over alleged irregularities in a national-level entrance examination, the Supreme Court has agreed to hear public interest litigations concerning alleged use of force by police against protesting students.
The Court has listed these petitions for hearing, and has separately directed the concerned central authorities to address the underlying examination-related lapses.
The episode has renewed public discussion on which constitutional institution is tasked with protecting citizens' rights when the actions of other arms of the state are themselves under challenge.
Members of the Supreme Court Bar have publicly recited the Preamble to the Constitution during this period, a gesture widely read as a reaffirmation of constitutional values rather than a partisan act.
The controversy has prompted renewed explainers on the judiciary's institutional role as "guardian of the Constitution" through judicial review and writ jurisdiction.
Judicial Review and the Supreme Court as "Guardian of the Constitution"
Judicial review is the power of courts to examine the constitutionality of legislative enactments and executive orders, and to strike down those that violate the Constitution. It flows from Article 13 (any law inconsistent with or in derogation of Fundamental Rights is void), Article 32 (the right to move the Supreme Court directly for enforcement of Fundamental Rights, which Dr. B.R. Ambedkar called the "heart and soul" of the Constitution), and Article 226 (the corresponding writ jurisdiction of High Courts, wider in scope as it covers "any other purpose" beyond Fundamental Rights). This power is what allows the judiciary to check executive and legislative action, including alleged excesses during law-and-order operations.
Key Details
- Article 32 empowers the Supreme Court to issue writs — habeas corpus, mandamus, prohibition, certiorari, and quo warranto — for enforcement of Fundamental Rights.
- The doctrine of "basic structure" further entrenches judicial review itself: in Kesavananda Bharati v. State of Kerala (1973), decided by a 13-judge bench (the largest ever constituted by the Supreme Court) by a narrow 7:6 majority, the Court held that Parliament's amending power under Article 368 cannot be used to abrogate or destroy the "basic structure" of the Constitution, and judicial review has since been recognised as itself part of that basic structure.
- Public Interest Litigation (PIL), which relaxed the traditional rule of locus standi, has become the principal route through which allegations of state overreach — including against protesting citizens — reach constitutional courts.
The Supreme Court's decision to hear petitions alleging police excesses against protesting students is a direct exercise of this guardian role — using its writ jurisdiction to scrutinise executive conduct rather than leaving it unreviewed.
Right to Peaceful Assembly and Protest
Article 19(1)(b) guarantees citizens the right "to assemble peaceably and without arms," subject to reasonable restrictions under Article 19(3) on grounds of sovereignty and integrity of India or public order. Courts have consistently held that this right extends to the use of public streets and spaces for peaceful demonstration, though it does not create an unqualified right to protest at any place or time.
Key Details
- In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad (1972/73), a Constitution Bench of the Supreme Court struck down police rules that conferred arbitrary, unguided discretion to refuse permission for public meetings on streets, holding that while the right under Article 19(1)(b) is not a right to assemble anywhere and anytime, restrictions must be reasonable and not arbitrary.
- Restrictions on assembly must satisfy the "reasonableness" test under Article 19(3)/(4) and cannot amount to a blanket prohibition.
- Any use of force to disperse a protest must itself be tested against constitutional standards of proportionality and necessity.
The petitions before the Supreme Court test exactly this boundary — whether police response to a student protest, ostensibly to maintain public order, crossed into an unreasonable restriction on the right to peaceful assembly.
Article 21 and Police Accountability
Article 21 guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law, and the Supreme Court has read this to include protection from custodial violence and excessive use of force by law-enforcement agencies.
Key Details
- In D.K. Basu v. State of West Bengal (1996/1997), the Supreme Court held that custodial torture, violence, or death is a violation of Article 21, and laid down binding procedural safeguards for arrest and detention — such as preparing an arrest memo, informing a relative or friend of the arrest, and permitting periodic medical examination.
- Many of these guidelines were later codified into the Code of Criminal Procedure through the 2008 amendment (Sections 41B–41D).
- Constitutional courts can direct inquiries, award compensation, or issue guidelines where state action against citizens — including protesters — is found to be excessive or arbitrary.
Allegations of police excess against student protesters squarely engage this Article 21 jurisprudence, and any judicial inquiry ordered by the Supreme Court would draw on this body of custodial-accountability law.
- Kesavananda Bharati v. State of Kerala (1973): decided by a 13-judge bench, the largest in Indian judicial history, by a 7:6 majority; established the basic structure doctrine limiting Parliament's power under Article 368.
- Article 32 (Supreme Court) and Article 226 (High Courts) are the constitutional sources of writ jurisdiction underlying judicial review.
- D.K. Basu v. State of West Bengal guidelines on arrest and custody (1996 judgment, reported 1997) were later given statutory backing via the 2008 CrPC amendment (Sections 41B–41D).
- Himat Lal K. Shah v. Commissioner of Police, Ahmedabad (1972) struck down arbitrary prior-permission rules for public meetings on streets as unconstitutional.