In any healthy democracy, the principle of separation of powers is sacrosanct. The legislature drafts and passes laws, the executive implements them, and the judiciary interprets them when challenged. However, recent events in India raise a fundamental question: Is this balance still intact, or has the judiciary begun to overstep its constitutional mandate under the guise of “secularism”?
This concern came into sharp focus during the passage of the Waqf Amendment Bill, 2025. The Bill, debated and passed in both Houses of Parliament, followed due constitutional process. It was supported by 288 Members of Parliament and opposed by 232. Only 24 of the dissenting votes came from Muslim MPs—the remaining 208 were Hindus. This curious statistic has reignited an old question: Why do some lawmakers, elected on the promise of national interest, often act against the majority sentiment under the pretext of secular obligation?
To understand the discontent surrounding this legislation, it is essential to look at what the Bill aims to correct. The Waqf Act in its current form has long been criticized for allowing unelected Waqf Boards to control vast swathes of public land, often without transparency, accountability, or judicial scrutiny. Critics argue that this creates parallel governance structures and sets a dangerous precedent in a secular state. The 2025 amendments sought to rectify this imbalance. Yet, even as Parliament fulfilled its legislative duty, petitions were filed in the courts seeking a stay on the law’s implementation. And, unsurprisingly, the judiciary agreed to hear them.
This raises a fundamental concern: Is the judiciary acting as an interpreter of the Constitution or as its editor?
In response to growing unease over judicial overreach, the Chief Justice of India, Justice Khanna, recently remarked that judges “forget their religion” when they don the robes of justice. But what’s so remarkable about that? Isn’t that the bare minimum expected of any constitutional officeholder—be it the President, the Prime Minister, or the Election Commissioner? One does not earn applause for adhering to the job description. In fact, the very need to assert such impartiality raises doubts about whether the system still assumes it as a given.
It’s worth noting that the word “secular” itself—now routinely invoked to challenge majority-backed laws—was inserted into the Preamble during the Emergency in 1976, by the Indira Gandhi government. That amendment, made without public consultation during a period when civil liberties were suspended, remains one of the most controversial episodes in constitutional history.
Ironically, the same judiciary that today appears eager to scrutinize legislation was once hesitant to challenge executive overreach. During the Emergency, the Supreme Court infamously upheld the suspension of habeas corpus, allowing the state to detain citizens without trial. In the Shah Bano case of 1985, the apex court ruled in favour of a Muslim woman seeking alimony, only for Parliament, under pressure from religious orthodoxy, to overturn the judgment through legislation. Then too, the judiciary remained silent.
The question then arises: Why this sudden burst of judicial activism—and why does it so often echo elite narratives rather than uphold constitutional morality? Is it because Prime Minister Narendra Modi has been too soft, too unwilling to assert the Legislature’s authority?
This is not a call for majoritarianism, nor an attack on judicial review. It is a demand for constitutional discipline. No institution—not even the judiciary—can operate in a vacuum. Its legitimacy flows from the Constitution, which was designed to empower elected representatives, not to sideline them.
Those who oppose reform of the Waqf Act often frame their argument as a defense of minority rights. But one must ask: Is land ownership without checks and balances a constitutional right? And if not, why should Parliament’s attempt to bring equity and transparency to religious land holdings be treated as suspect?
What is especially disheartening is the pattern of internal division. Much like in historical episodes where Hindu kings and warriors found themselves on opposing sides—whether in the court of Akbar or on the battlefield of Haldighati—the present day sees ideological splits among lawmakers that have little to do with legal merit and more to do with political expediency.
The tragedy is not that debates happen; that is democracy. The tragedy is when decisions grounded in constitutional procedure are delayed or undone by institutions not meant to legislate.
In the end, this is not just a story about one Bill. It is about who truly governs India. And unless all pillars of democracy remember their place and purpose, we risk becoming a nation where electoral mandates are nullified—not by the people, but by those never elected at all.
