Of Reactivity and Ad Hocism: Supreme Court’s Interventions and the Cost to Institutional Integrity
Building on the concerns raised in my earlier post, this piece examines a more recent Supreme Court intervention that raises even deeper questions about institutional propriety and federal balance
While the High Court’s reasoning in the previous case was certainly questionable, my concern then—and it continues now—was not with the merit of the High Court’s order, but with the process and manner of the Supreme Court’s intervention. I had argued that such ad hoc interventions risk undermining the autonomy of the High Courts and distort the architecture of judicial federalism under the Constitution.
The same theme has now resurfaced with even graver implications. On March 27, 2024, the Supreme Court stayed another ruling of the Allahabad High Court in which the High Court had held that grabbing the breasts of a minor and pulling her pyjama strings would not amount to an attempt to rape under Section 376/511 of the IPC. While the High Court’s reasoning is certainly troubling, the method of suo-motu intervention adopted by the Supreme Court once again reveals a reactive and interventionist posture that, if left unchecked, may lead to ad-hocism and erode institutional legitimacy in the long run.
This piece critiques the Supreme Court’s approach in dealing with such matters, particularly when it short-circuits established appellate procedures and chooses instead to act in an ad hoc fashion. I argue that such actions, even when well-intentioned, may ultimately harm the institutional character of the judiciary and disturb the delicate balance of power envisaged under the Constitution.
The Allure and Danger of Reactivity
At the heart of the matter lies a deeper institutional concern: the remedy for a debatable or unpopular judicial order cannot be institutional overreach.
The decision of the High Court, while open to criticism, was the product of judicial reasoning. It may be a contestable view, but it is not perverse. It falls within the realm of plausible legal interpretation, even if many—including the Supreme Court—might disagree with its conclusions.
This is not merely a matter of constitutional doctrine—it is a matter of judicial temperament. As Marc Galanter observed in Snakes and Ladders: Suo Moto Intervention and the Indian Judiciary[1], these interventions often resemble "Cinderella law," where the Court appears as a heroic rescuer, bypassing procedural formality to deliver justice to a resourceless victim. The risk, however, is that such “heroic” interventions often sacrifice accuracy, process, and institutional coherence in exchange for dramatic effect and public approval
In such circumstances, our courts must remain guided by constitutional structure, not by the impulse to correct every perceived misstep. The Supreme Court’s intervention—seemingly prompted by public outcry and media coverage—reveals an institutional reactivity that sits uneasily with its constitutional role. The Court’s enduring strength lies in its capacity for principled restraint, not in operating as an emergency response unit for every contentious judicial pronouncement.
The Supreme Court’s intervention—prompted by public outcry and media scrutiny—reveals a pattern of institutional reactivity. Courts cannot allow outrage to become the organizing principle of judicial review. The Court’s constitutional strength lies in restraint, not in acting as a rapid-response mechanism for controversial lower court judgments
The Problem with Expanding Suo Motu Jurisdiction
This concern takes on greater urgency in light of recent data. According to the Supreme Court Observer, 2024 witnessed the highest number of suo motu interventions by the Court in its recent history. These include interventions in service matters, criminal law, civil disputes, and questions of constitutional interpretation. More importantly, many of these were initiated without a clear articulation of jurisdiction or procedural propriety.
The absence of a statutory or constitutional framework regulating the exercise of suo motu powers has led to a situation where the Court can—and does—intervene without consistent standards. As noted by Bar & Bench in a thoughtful analysis, this power has “remained largely undefined, both in scope and limits,” giving rise to concerns over accountability, transparency, and due process.
To compound the problem, suo motu jurisdiction has sometimes been invoked not in response to systemic injustice or unrepresented victims, but to set aside the reasoned (even if flawed) orders of constitutional courts. In such contexts, this power begins to look less like judicial activism and more like judicial paternalism.
Article 32 Is Not a Supervisory Tool
It is worth recalling, yet again, that Article 32 is a fundamental right available to citizens to seek redress for violations of their constitutional rights. It is not a carte blanche for the Supreme Court to supervise the functioning of the High Courts. Indeed, as established in Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra (1966) 3 SCR 744 and Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, the Supreme Court cannot issue writs of certiorari against High Court judgments in exercise of Article 32. High Courts are not subordinate tribunals or inferior courts against whom such supervisory jurisdiction can be exercised[2].
The only exception carved out, notably by J. Hidayatullah in his dissent in Mirajkar, is in cases where there is a gross violation of fundamental rights—and even then, the majority did not endorse such a view. In fact, it is a settled principle that Article 32 is maintainable only against “State” as defined under Article 12, and judicial acts do not fall within this definition unless done in administrative capacity[3].
Therefore, when the Supreme Court stays a High Court judgment by invoking Article 32—or by acting suo motu without a petition and outside its appellate jurisdiction—it departs from the previous decisions rendered by it.
Ad Hocism as a Norm?
What makes this approach even more problematic is the absence of consistency or principle in deciding when the Supreme Court will intervene and when it will not. It is difficult to understand why some High Court judgments are picked up for suo motu correction while others which may be equally egregious—are left untouched.
The answer often lies not in the gravity of the legal error but in public outrage, media noise, or the views of Chief Justice of India. This ad hocism corrodes the rule of law. It lends credence to the perception that justice is administered based on outrage rather than principle—that the judiciary is reactive rather than reasoned.
The institutional costs of such behavior are immense. It sets poor precedent for future benches, and fosters judicial populism at the cost of constitutional integrity.
A Fragile Balance: High Courts and Judicial Federalism
At a more structural level, these interventions tilt the balance of power significantly in favor of the Supreme Court. While the Supreme Court is certainly the final court of appeal, it was never intended to be an omnipresent auditor of every High Court decision. High Courts are constitutional courts in their own right and enjoy independence within their respective jurisdictions as has been held in Tirupati Balaji Developers (P) Ltd. v. State of Bihar, (2004) 5 SCC 1 and affirmed by a recent constitution bench in Allahabad High Court Bar Assn. v. State of U.P., (2024) 6 SCC 267[4].
Frequent and unstructured interventions by the apex court not only devalue the stature of High Courts but also centralize judicial power in ways that the Constitution never envisioned. They suggest a mistrust in the High Courts’ ability to correct themselves, or for the appellate process to work its way through. Over time, such a culture will reduce institutional diversity in legal reasoning and create a chilling effect on the judges of the High Courts.
The Way Forward: From Firefighting to Framework
If the Supreme Court is concerned about misapplications of criminal law, gender justice, or other key areas of public interest, it must evolve a structured mechanism—perhaps through dedicated constitutional benches or guidelines—that set out when and how such matters can be taken up in deviation from regular procedure.
There must also be greater transparency in suo motu listings and a principled articulation of why Article 32 or judicial notice is invoked in a given case. More importantly, the Court must reaffirm its faith in the appellate process and in the institutional competence of the High Courts.
What is needed is not more firefighting, but the creation of a coherent framework that balances correction with restraint.
Institutional Legitimacy Requires More Than Good Intentions
The Supreme Court undoubtedly plays the role of a sentinel on the qui vive of fundamental rights and constitutional morality. But its authority must rest not on episodic interventions or media-driven urgency, but on consistency, restraint, and respect for process.
If it continues to act as a roving supervisor of High Court decisions, without a transparent or principled basis, it risks becoming a participant in the very erosion of institutional trust it seeks to prevent.
It is time for the Court to step back from the allure of the heroic and return to the steadiness of constitutional discipline. It is time, as ever, to move from reaction to reason
[1] Marc Galanter, ‘Snakes and Ladders: Suo Motu Intervention and the Indian Judiciary’ (2014) 10 FIU Law Review 74
[2] Para 7, Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388
[3] Para 68, Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461
[4] Para 28, Allahabad High Court Bar Assn. v. State of U.P., (2024) 6 SCC 267
