The Supreme Court in Modi’s India

Abstract

Twenty-first-century elected right-wing regimes share many similarities apart from being led by “authoritarian populists” who centralize power in themselves and represent ethnic or religious majorities at the expense of other citizens. Since higher judiciaries are key to ensuring executive accountability and the separation of powers in a liberal democratic constitutional setup, they are on the front lines of authoritarian attempts at institutional capture. Unlike earlier dictatorships that suspended existing constitutional protections or imposed martial law, current authoritarian regimes maintain a semblance of legality and constitutionalism while in practice attempting to remake the judiciary in their own image. This phenomenon has been variously termed “autocratic legalism,” “abusive constitutionalism,” and “populist constitutionalism.”In this article, I look at how the Indian Supreme Court (SC) has responded to executive incursions under the Narendra Modi regime since 2014. Even today, the court continues to deliver important democracy-enhancing judgments, breaking away from India’s colonial inheritance in matters like criminalizing same-sex relationships and adultery. However, the last decade is strongly marked by two features: first, an unwillingness to hear major constitutional issues that might challenge the regime; and second, judgments that serve as an advertorial for the regime, reinforcing an antiminority ideological orientation, justifying the government’s actions, and promoting Modi’s personality cult. By outsourcing several political decisions to a seemingly disinterested and neutral judiciary, the Modi government has been far more successful than it would have been if it had imposed those decisions purely by legislative majority. In turn, by addressing a variety of political issues as purely legal matters and not addressing them as constitutional questions, the courts have collaborated in the delegitimization of dissent and reinforced the claims of the Modi regime.