UPA to Modi: How 3X rise in judicial review of laws is redefining lawmaking

New Delhi: BJP MP Nishikant Dubey’s recent outburst, “Shut down the Lok Sabha and state Assemblies if the Supreme Court is to make laws”, has ignited a fresh debate over the separation of powers in India’s constitutional democracy.

While opposition parties slammed the statement as an attack on judicial independence, a closer look at past and present realities reveals a deeper story: Dubey’s criticism may be rooted less in political defiance and more in a pattern of increasing judicial intervention, particularly during the Narendra Modi-led government’s tenure.

Judicial review in the UPA era (2004–2014)

During the United Progressive Alliance’s decade in power, a handful of key legislations were challenged, though the judiciary often upheld the core intent of those laws with constitutional caveats.

1. Central Educational Institutions (Reservation in Admission) Act, 2006: Challenged for providing 27% reservation to OBCs in central institutions. The Supreme Court upheld the law in Ashoka Kumar Thakur v. Union of India, excluding the “creamy layer.”
2. Information Technology (Amendment) Act, 2008 – Section 66A: Struck down in Shreya Singhal v. Union of India (2015) as unconstitutional for curbing free speech.
3. Unlawful Activities (Prevention) Amendment Act, 2008: Provisions enhancing state power under anti-terror laws faced legal challenges, though the law itself was upheld with strong judicial scrutiny.

Compared to the Modi era, the volume and intensity of legal pushback during the UPA’s rule were notably lower.

Modi government era (2014–present)

Under the Modi government, the number and scale of legislative interventions facing constitutional scrutiny have significantly increased. Here's a detailed look:

1. National Judicial Appointments Commission (NJAC) Act, 2014: Intended to reform judicial appointments, it was unanimously struck down in 2015 by a five-judge bench for violating the basic structure doctrine.
2. Aadhaar Act, 2016 (as Money Bill): While Aadhaar was conceptualized under UPA, its passage as a Money Bill under NDA was challenged. The SC upheld the Act but struck down sections permitting private use and recommended review of the Money Bill route.
3. Transgender Persons (Protection of Rights) Act, 2019: Challenged for requiring trans persons to get certified by a district magistrate, a violation of the right to self-identify. The case remains pending.
4. Citizenship (Amendment) Act, 2019 (CAA): Over 140 petitions challenge the law for violating Article 14 by excluding Muslims. Final hearings are awaited.
5. Jammu & Kashmir Reorganisation Act, 2019: Supreme Court upheld the abrogation of Article 370 and bifurcation of J&K in Dec 2023, but the prolonged legal process fueled a wider debate.
6. Farm laws (2020): Temporarily stayed by the SC amid nationwide protests. Eventually repealed by the government in 2021, a rare case where legal and public pressure converged.
7. Electoral bonds scheme (2017): Struck down in 2024 as unconstitutional, citing transparency concerns in political funding.
8. Recognition of same-sex marriages: A landmark constitutional challenge concluded in October 2023 with the Supreme Court deferring the issue to Parliament, rejecting legal recognition for now.
9. Extension of tenure for ED & CBI chiefs: While the SC allowed current extensions, it disallowed further renewals beyond 2023, reinforcing institutional safeguards.
10. Waqf (Amendment) Act, 2025: The latest in the list, challenged by opposition leaders and religious groups for violating minority rights. The matter is pending.

Judicial overreach?

The trend is unmistakable: more laws passed under the Modi government have ended up under constitutional scrutiny, and in many cases, facing outright rejection or significant curtailment by the Supreme Court. While this reinforces the court’s role as the guardian of the Constitution, it also reveals growing friction between India’s two central institutions.

Nishikant Dubey’s comment reads not just as political rhetoric but as a manifestation of a deeper frustration within the ruling establishment. From policy rollout to implementation, repeated judicial halts are increasingly seen by some in government as roadblocks to governance.

What the judiciary sees as constitutional correction, the executive increasingly perceives as obstruction.

This perception is further complicated by how judicial scrutiny has evolved over time. Laws such as the Waqf (Amendment) Act of 2013, passed during the UPA regime, introduced sweeping changes to the administration of religious endowments, giving Waqf Boards greater control and restricting property transfers. While the BJP voiced ideological opposition to such legislation in public discourse, it did not move court against the law at the time.

The absence of judicial challenge during that period contrasts sharply with the present, where several Modi-era laws have landed in the courtroom within days or weeks of enactment. Part of the reason may lie in the political context of the time, BJP, then in opposition, lacked the parliamentary strength and legal-political infrastructure it commands today. The earlier opposition approach relied more on political mobilisation than judicial remedy.

From the government’s perspective, the frequent stays, delays, and annulments of legislation, many of which are central to its political mandate, feel less like checks and more like vetoes.

This sense of imbalance was recently amplified when the Supreme Court, in a case concerning bills passed by state legislatures, set a timeline for the President of India to decide on whether to grant assent. While the ruling was framed as a safeguard against indefinite executive delays, it raised a deeper question: if legislative supremacy is sacrosanct, does the judiciary override that principle by prescribing deadlines to a constitutional authority like the President?

The government sees this not just as a procedural intrusion but as part of a broader pattern where judicial authority is asserting primacy over all three pillars of democracy, the legislature, the executive, and now, even the ceremonial powers of the Head of State.

From the judiciary’s standpoint, its interventions are not overreach but constitutionally enshrined duties, particularly under Article 32, which empowers citizens to directly approach the court when fundamental rights are at stake.