What Has Happened to the Rule of Law in India?

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Written By Pinang Driod

On December 11, India’s supreme court upheld ending the constitutional privileges of the Indian-controlled province of Kashmir, a disputed region claimed by both India and Pakistan. The decision was a sobering example of the Indian judiciary’s creeping servility in the era of Prime Minister Narendra Modi. Just as India’s vibrant, secular democracy is transforming into an authoritarian, ethnonationalist state, the supreme court, once vaunted for its fierce independence, is failing to stand up for the rule of law.

The Kashmir ruling is the resolution of a case that began in 2019. In a brazen and theatrical move that year, Modi’s government scrapped Article 370 of the Indian constitution, which gave Kashmir—the only Muslim-majority province in India—autonomy and special privileges relative to other states. Article 370 was a condition of Kashmir’s accession to India in 1947, toward the end of British colonial rule. The move to revoke its provisions was seen by many legal experts as illegal and unconstitutional, and more than a dozen petitioners, including private citizens, activists, and political parties, challenged the decision in India’s supreme court.

The court’s December verdict is remarkable for its sophistry: The ruling declared that the means by which the Modi regime had ended Kashmir’s autonomy was illegal—but the court nevertheless upheld the scrapping of the province’s constitutional privileges, arguing, somewhat tendentiously, that Article 370 was merely a temporary provision. The contradictory reasoning and pusillanimity of the verdict led a prominent political commentator to proclaim that “the last pillar of Indian democracy has fallen.” Prashant Bhushan, a well-known civil-rights lawyer, described the judgment as an act of capitulation, writing that the court had first decided “that the conclusions it wanted to reach were to endorse the Government’s actions” and “then invented some arguments to justify those conclusions.”

The judgment’s implications for Indian federalism beyond Kashmir, in a continent-size nation more polyglot and diverse than Europe, are troubling. At the country’s founding, most political observers believed that India was too heterogeneous and unwieldy to hold together. That the country has defied those predictions is in large measure attributable to its constitution, a remarkably imaginative and capacious document that stands as one of the great achievements of the postwar era. Now the court has signaled that it is willing to accept a naked power grab by the federal government at the expense of provincial and state authorities.

In the decades before Modi’s ascension as prime minister, India’s supreme court was both powerful and combative. It had seized the prerogative during a period of weak government in the 1990s, in part by establishing the collegium system, which allowed the court to select judges internally without any executive say in the matter. At the turn of the century, the courts amassed even greater power, assuming such an active role in policy making that intellectuals complained of judicial overreach. During this activist phase, the judiciary expressed a strong current of defiance, routinely setting aside government orders. Now the court’s autonomy is crumbling at the moment when India needs it most.

Modi sought to tame the judiciary almost from the moment he arrived in power in 2014. That year, through an act of Parliament, the government set up the National Judicial Appointments Commission, a mechanism for granting the executive significant powers in the appointment of judges, with the ultimate aim of ending the collegium system. But the commission had to be approved by the supreme court, which struck it down as unconstitutional the following year.

Unable to subdue the judiciary by legal means, the Modi government resorted to other measures. It began by delaying the appointment of judges: The convention had been for the government to accept the collegium’s recommendations as binding, but the Modi regime began to exercise an active veto. Once judges are appointed, the government uses the means at its disposal to cajole their loyalty. When supreme court justices retire, the government can offer those it prefers plum postings. A recent chief justice was nominated to be a member of Parliament four months after his retirement; a judge who hailed Modi as a “versatile genius” was later appointed chair of the National Human Rights Commission. Conversely, multiple legal experts I have spoken with suggest that the Indian government maintains detailed dossiers on every high-ranking judge. A spokesperson for the opposition Congress Party has alleged that the Modi regime weaponizes the dossiers to manipulate the judiciary. Some judges may even fear for their physical safety: In 2014, a special-court judge who had taken a firm stance in a trial involving Amit Shah, the president of the ruling Bharatiya Janata Party (BJP) at the time and now India’s home minister, was found dead under mysterious circumstances. The court declined petitions to investigate the matter.

In 2018, the judiciary raised an alarm about executive interference. Four supreme court judges held a press conference cautioning that the court’s independence was under threat and implying that its chief justice was being effectively controlled by the government. But in 2019, Modi was reelected with an enhanced mandate that made him India’s most powerful prime minister in decades. Since that time, India’s supreme court has become surprisingly deferential and taciturn.

Just six months after Modi’s reelection, in November 2019, the court ruled on a politically fraught case in the northern city of Ayodhya. The city occupies a mythic place in the Hindu imagination: Much of the action in the epic Ramayana, whose tenets have been central to Hindu life for millennia, takes place in Ayodhya. In 1992, Hindu nationalists destroyed a 16th-century mosque there, following a yearslong campaign propagating the falsehood that the mosque stood on the birthplace of Lord Rama, the most revered of Hindu deities. In the years after the mosque’s violent demolition, Hindu nationalism became a dominating force in Indian politics, and Ayodhya—a nondescript, impoverished town for much of its modern existence—emerged as the crucible for a contested country. A battle over the site of the mosque raged in the courts for decades.

In November 2019, the supreme court issued a bizarre but unanimous decision that termed the destruction of the mosque by a Hindu-nationalist mob numbering in the tens of thousands “an egregious violation of the rule of law”—then proceeded to award the entirety of the ruined structure’s site to the Hindus. Much as the Kashmir verdict later would, the ruling rested on contradictory reasoning and ultimately aligned with the Hindu-nationalist agenda.

Just a month after the Ayodhya decision, an emboldened Modi government passed the Citizenship Amendment Act, ostensibly to provide a pathway to citizenship for refugees and undocumented immigrants from neighboring countries in South Asia, except if they were Muslim. India does not have a large-scale refugee problem; the intended effect of the law was to destabilize Muslim citizenship in a country where most Indians have weak documentation. Shah, the home minister, boasted of eliminating “termites” from the country, fueling the anxiety of Indian Muslims that the law would expose them to arbitrary detention and even statelessness. India erupted in protests of an order and magnitude not seen for nearly half a century.

The judiciary had reason and standing to strike down the Citizenship Amendment Act: In a landmark 1973 ruling, the supreme court had decreed that legislative amendments could not amount to a rewriting of the founding principles of the constitution. A Hindu-nationalist government could not, for example, legally distort India’s secular character, even with a parliamentary majority. But the supreme court showed little alacrity in hearing the multiple legal challenges brought before it. Under pressure from months of street demonstrations, the Modi government eventually pulled back from implementing the citizenship law—but more than four years later, the court has yet to rule on its constitutional validity.

Evasion has become a habit when cases are controversial. In 2017, the Modi government introduced an electoral-bonds scheme that allowed limitless corporate donations to political parties. The donations could be kept anonymous, even when they came from abroad. The court could have heard legal challenges to this scheme in 2019, before the most recent national elections, but it scheduled the case for after the vote. Five years later, with another election at hand, it still has not ruled on the legality of electoral bonds. (Perhaps not coincidentally, a recent report revealed that the BJP has swept up nearly 60 percent of all electoral bonds, amounting to more than $600 million.)

The supreme court’s obsequiousness in the Modi years recalls its role during the time known as the Emergency, an era of authoritarian rule in the 1970s under Prime Minister Indira Gandhi. The judiciary’s lowest moment during that period came in 1976, when it gave its imprimatur to unlawful detention by ruling that the principle of habeas corpus could be suspended. The Emergency lasted 21 months, after which time the court worked to restore its institutional reputation.

In the 1990s, India had a succession of shaky coalition governments, and the judiciary grasped the opportunity to accumulate more power for itself by instituting the collegium system. Judicial power became strongest, in other words, when executive power was its weakest. And the courts took on a directly activist role. If citizens had complaints about civic neglect or ineffective governance, they could approach the courts, which could take remedial action. Courts got involved in fixing urban power grids and in setting education and transport policy. The legal scholar Anuj Bhuwania has written that the Delhi high court was able to “monitor and micromanage every aspect of the city’s governance.” Indian intellectuals complained of judicial overreach.

“The activism was based on the idea that politics has failed, and the court has to step in and clean up,” Gautam Bhatia, a practicing counsel at the supreme court, told me. But under Modi, the landscape has changed: “When you have a populist government claiming to speak for the people, that rhetoric is no longer available to the court,” Bhatia said.

When I spoke with Pratap Bhanu Mehta, a visiting professor at Princeton, he suggested a more discomfiting possible reason for the judiciary’s political acquiescence under Modi: Perhaps some of the supreme court justices share the government’s ideology. The court is a rare Indian institution without an affirmative-action policy. An overwhelming majority of its justices come from an entrenched elite—male, Hindu, and occupying the upper echelons of India’s caste system—a demographic that has traditionally been the bedrock of Hindu nationalism.

In the near term, Mehta foresees further erosion of the court’s independence and forms of jurisprudence ever more closely aligned with Hindu nationalism. “The scale of constitutional subversion that the government is trying to attempt has changed so radically,” he told me. “You are seeing one constitutional hara-kiri a month. And the court’s response is mostly avoidance.”

Through Modi’s decade in power, the most conspicuous personality on the supreme court bench has been Chief Justice D. Y. Chandrachud. A graduate of Harvard Law School and a scion of a storied legal family (his father was also a chief justice), Chandrachud has spent much of his tenure delivering high-minded speeches extolling liberal ideals while taking care in practice not to challenge the government’s agenda. Chandrachud was part of the five-judge bench that delivered the unsigned Ayodhya verdict. Known as the “master of the roster,” the chief justice has sole jurisdiction in the listing and allocating of cases, and in the composition of benches.

But these days, Chandrachud’s political independence has come under scrutiny. In December, he was revealed to have abruptly shifted eight politically sensitive cases to a bench that included a judge who had served under Modi while he was chief minister of the western state of Gujarat. And in early January, the chief justice made an unorthodox display of faith by paying a public visit to a temple in Dwarka, one of Hinduism’s holiest sites, situated in Gujarat. In remarks he gave during that trip, Chandrachud claimed inspiration from the saffron flags traditionally flown above Hindu temples, which he suggested were a unifying symbol for the nation’s citizens. Modi endorsed the remarks on X (formerly Twitter) and praised the chief justice as if he were a junior functionary.

The most apposite demonstration of how the court has functioned under Chandrachud is the fate of the bail petition for Umar Khalid, the country’s most famous Muslim dissident. Khalid has been accused, contrary to evidence and logic, of instigating riots in Delhi in 2020. He has languished in prison for more than three years under a draconian law that allows for long periods of imprisonment without trial. The Modi government has repeatedly invoked the law, supposedly in place to fight terrorism, to jail activists and dissidents.

Khalid’s petition for bail was posted in the supreme court in July, and a two-judge bench of the court claimed that it would “take only one or two minutes” to grant it. But Khalid’s plea became lost in a Kafkaesque maze, listed 10 times before different judges. As the court’s proceedings for 2023 came to a close, Khalid’s bail petition still had not been heard.

India’s supreme court was created under the 1950 constitution to serve as a bulwark against the concentration of executive power and to shore up the country’s secular, democratic ideals. Today the court seems to be aiding, not arresting, India’s descent into authoritarianism. At risk is not only the court’s historical legacy but also India’s remarkable democratic experiment itself.

Vaibhav Vats is a writer and journalist based in New Delhi. He is working on a book on Hindu nationalism and India under Modi.


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