The Supreme Court’s March 27 stay order on reservations for OBCs has provoked DMK supremo Karunanidhi to question how two or three judges could rule against the wishes of the majority of people. This is an ancient lament. In the Constituent Assembly, eminent jurist Aladi Krishnaswamy Iyer, as well as veteran T.T.K. Krishnamachari were sceptical about entrusting the power of judicial review to “five or six gentlemen sitting in the Supreme Court”.

However the founding fathers were prepared to take the risk. After an extensive debate, it was decided to entrust the judiciary with the solemn task of preventing the fundamental rights of the people from being steamrollered by a popular assembly swayed by the passions and prejudices of the day, and to preserve the cardinal values of the Constitution against majoritarian onslaughts.

It is a perennial fallacy to perceive the Supreme Court’s judgments or orders as a conflict between a few judges and the majority of people. It is not a question of numbers at all. Suppose, by an overwhelming majority, a law is passed which outlaws strikes and demonstrations by government employees, or which sanctions gender discrimination. Are courts bound to uphold such laws, which violate the workers’ fundamental rights and the rights of women, on the grounds that the will of the people must prevail? Such a stance makes a mockery of judicial review by an independent judiciary, which is a basic feature of our Constitution and which has been a bulwark of the fundamental rights of our people.

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