Reforming Islam-How many ways to crack an egg - A conversation with Andrew March. JAMES M. DORSEY

 

Reforming Islam-How many ways to crack an egg - A conversation with Andrew March.

JAMES M. DORSEY

SEP 30 023

 

 

 

James M. Dorsey (00:06):

 

Hi, and welcome to the Turbulent World with me, James M. Dorsey as your host,

 

Islamic Law is at the centre of debates about what constitutes moderate Islam and what it would take to reform Islam. Essentially two schools of thought dominate the discussion. Islam's traditional approach simply picks and chooses which elements of Sharia it opts to ignore. That is the approach adopted by autocratic rulers like Saudi Crown Prince Mohammed bin Salman and United Arab Emirates. President Mohamed bin Zayed.

 

Indonesia's, Nahdlatul Ulama, the world's largest and most moderate civil society movement challenges the traditional approach. It insists that removal of outdated, obsolete, and supremacist concepts in Sharia is the only way to fortify Islam against religious and political extremism and promote political, social, and religious pluralism, religious tolerance, and democracy. My guest today, Andrew March, a University of Massachusetts Amherst professor is an Islam scholar and author of several books published last month.

 

(01:28)

 

Andrew's last book on Muslim democracy is a translation of essays by Rached Ghannouchi, a Tunisian politician, public intellectual, religious thinker, and founder of a political party that evolved from Islamism to Muslim democracy in many ways comparable to Christian democratic parties. The book is also a philosophical discussion between the two.

 

Mr. Ghannouchi was named one of Time's 100 most influential people in the world in 2012 and Foreign Policy’s top 100 global thinkers. Eighty-two years old, Mr. Ghannouchi is the latest high- profile figure to have been arrested on charges of incitement against state authorities by the autocratic regime of President Kais Saied. Ghannouchi went on hunger strike this week.

 

Ghannouchi is a middle ground figure in the debate about what constitutes moderate Islam and how to reform the faith. Reform of Sharia may be one step too far for him. Yet, his evolution from Islamism or political Islam to Muslim democracy positions him as a democratic reformer.

 

It raises the question of whether Mr. Ghannouchi and  his Ennahda Party are models for groups like the Muslim Brotherhood or the exception that confirms the rule that political Islam is inflexible, rigid, and opposed to moderate interpretations of Islam and a threat to secularism. Andrew March joins me to discuss all of this.

 

Andrew, welcome to the show and congratulations on the publication of your latest book. Thanks

 

Andrew March (03:15):

 

Thank you so much for having me. I'm very, very happy to be here.

 

James M. Dorsey (03:18):

 

It's a pleasure and an honour to have you.

 

Let's kick off with your intellectual journey, if I may. What drove you to the study of Islam? How did you come to know Rached Ghannouchi and what is your relationship with it?

 

Andrew March (03:33):

 

Well, I have been studying Arabic and Islam for almost 27 years now. I started as an undergraduate doing Arabic and Middle Eastern studies. I did my PhD in political theory, but because I was so passionate about the study of Arabic and Islamic intellectual traditions, my dissertation and my first book was on Islamic thought related to the moral and ethical position of Muslim minorities living in non-Muslim liberal democracies. So that was a study of an Islamic legal discourse called Fiqh al-Aqalliyyat or the Jurisprudence of Muslim minorities. My second book published in 2019 called ‘The Caliphate of Man: Popular Sovereignty in Modern Islamic Thought’ is a study of the development of a certain kind of commitment to popular sovereignty and a certain kind of ideal theory of an Islamic democracy in 20th and 21st century Islamic thought. The thought of Ghannouchi is very central to that, and in fact, in that book, I sort of argue that the modern project of imagining a state that is both equally faithful to divine sovereignty and yet fully democratic and supportive of the idea of the people as sovereign culminates in Ghannouchi’s sort of writings in the 1980s and 90s, particularly his book Public Freedoms in the Islamic State.

 

(05:12)

I came to know him and his family in around 2013 or 14 I believe. I was editing a translation series with Yale University Press, and we wanted to translate his book Public Freedoms in the Islamic State. So I came to know him and his family that way, and then through visiting Tunisia and visiting him in his home, we conceived of the idea of doing this book, which consists in a translation of ten of his essays and speeches and writings on themes related to pluralism and democracy and Muslim democracy, which is a kind of turn from Islamic democracy to a different conception of politics, combined with a lengthy sort of week-long dialogue between him and me as a kind of an Islamic political philosopher and a western political philosopher discussing issues related to law, pluralism, democracy, and his own intellectual trajectory. I came to know him and a number of members of his family quite closely over those years. Of course, now he's a political prisoner since April, very unfortunately, and so all we can hope is that somehow through international pressure or the Tunisian legal system, he'll be released before it's too late.

 

James M. Dorsey (06:42):

 

Indeed. Maybe it's a good thing to sort of describe Ronin, not so much in terms of his politics, but who is he as a person?

 

Andrew March (06:53):

 

Well, separating him from his politics is very difficult. He's been sort of a full-time leader of the Ennahda Party for I guess almost 45 years now, including during a lengthy period of exile in England. Personally, he is a very reserved, deliberate, quiet, non-sort of flamboyant personality. He is not somebody that seeks out attention for himself. He is not somebody that is known for kind of over the top pronouncements. He's very calm, he's very systematic. He, of course, is very, very close to his family, very committed to his family, and a very thoughtful person who I think is usually happiest reading and writing and was sort of thrust into high politics because of the vagaries of history.

 

James M. Dorsey (08:06):

 

Ghannouchi and his Ennahada Party played a key role in what long seemed to be the Arab world's only post-2011 popular revolts, successful transition from autocracy to democracy. Can you describe what his and the party's contribution was and maybe some of the debates that took place?

 

Andrew March (08:28):

 

Of course, Tunisia had first a long transitional period, a long constitutive period of drafting the post authoritarian constitution between 2011 and 2014, and so we need to divide the period of Tunisian democracy up into a number of period. The first 2011, perhaps to what we call the crisis year of 2013 and 14, and then the period of 2014 to 2019 during the presidency of Beji Caid Essebsi, and then the period 2019 to 2021, which resulted in the coup by Kais Saied. At at the beginning, in the first election to the National Constituent Assembly in 2011. The Ennahada Party won 41 per cent of the vote, and so had the dominant role in the National Constituent Assembly, but not enough of a role to dictate the terms of the transition or to dictate the terms of the new constitution. So, the first thing to note, before we discuss anything related to their ideology or their own political priorities, is that their structural situation was very different from that of the Muslim brotherhood in Egypt where the combined Islamist forces of the Muslim Brotherhood and the Salafi parties had closer to 70 per cent of the seats in the constituent assembly.

 

(10:01)

So, from the beginning, Ennahada preferred to and had to adopt a kind of conciliatory position by entering into coalitions with other parties during the first period during the National Constituent Assembly. This was with certain more pro-democratic revolutionary forces like Moncef Marzouki’s Congress of the Republic. Marzouki, of course, was the first democratic president of Tunisia between 2011 and 2014, and so the long period of drafting a constitution was remarkable because it was a constitution that was drafted in radically democratic conditions, more democratic even than I would say Egypt, which of course had a open democratic process, but was kind of overseen and supervised by the institutions of the old regime, the Supreme Court, the judiciary, and, of course, the army. In the case of Tunisia, the situation was much more democratic and there was a strong argument that the constitution that came out in 2014 represented a constitution that reflected the actual demographic and ideological reality of the country.

 

(11:26)

And so the first thing to note is that while Ennahada has always been a kind of moderate party willing to enter into coalitions and compromises with a wide range of political actors. The most important thing was the electoral situation of the country, which dictated governance by consensus, by coalition by agreement. No political party was able to dictate the shape or contours of the post-authoritarian system. And then the next big event there was the crisis year of 2013 and 14 when you had the coup in Egypt, you had a number of high-profile assassinations in Tunisia, and there was a real concern that something similar could happen in Tunisia as happened in Egypt with regards to a counter revolutionary coup. And the response of Ghannouchi and Ennahda at that time was sort of out of necessity to make a kind of deal with the party of the ancien regime, particularly in the figure of Beji Caid Essebsi who became president in 2014, resulting in a kind of five-year informal period of alliance between Ennahda and Essebsi’s Nidaa Tounes party.

 

James M. Dorsey (13:02):

 

You've talked a bit about the comparison with Egypt in structural terms. To what degree, if at all, did personality play a role in the way that Egypt developed on the one hand and Tunisia on the other?

 

Andrew March (13:23):

 

It's hard to know too much about that. It's hard to know unless you're really an insider, what the actual room for maneuvering is, how much personality or personal ties played a role? Many people do believe that because the Tunisian opposition had developed ties over decades in exile between London and Paris, that there were personal relationships and a kind of groundwork for what a post-authoritarian system might look like, and I take that very seriously. I do also believe that Ghannouchi has a kind of risk averse personality and political strategy, was very, very concerned above all to prevent essentially what did happen in 2011, which was a coup and a criminalization of Ennahda and widespread imprisonment of its activists. So, I think his strategy was manifold during this period to advance Tunisian democracy to try to create a stable constitutional democratic system, including on the base of consensus with ideological rivals, but also to avoid situations in which Ennahda overreached and allowed for a pretext of justifying authoritarian backlash. So it's very, very hard to know how you isolate the role of personality apart from what other kinds of structural and institutional pressures that political actors have. So. I don't really have anything particularly insightful to say about a comparison, let's say between Ghannouchi and Mohamed Morsi or other figures in the Egyptian Muslim Brotherhood.

 

James M. Dorsey (15:17):

 

Right. You talked sort of structurally about the need for Ennahda and for Ghannouchi, to, if you wish, compromise work with forces it may not necessarily be ideologically aligned with. Perhaps you can walk us through some of the sort of concessions or moves that Ghannouchi and Ennahda had made, which resulted ultimately in them redefining themselves no longer as an Islamist party, but as a Muslim Democracy party. Walk us through some of those compromises and steps that they took.

 

Andrew March (16:04):

 

Well, at the ideological level, the best-known areas in which Ennahda had to compromise in the drafting of the Constitution was first in agreeing to no inclusion of any reference to the Islamic Sharia in the Constitution. So, as you and your listeners will surely know, many constitutions of Muslim majority states have some clause in their constitution that makes reference to something about the role of the Islamic Sharia in the legal system that could be defined positively, like traditionally in Egypt, that all legislation must be based on the Islamic Sharia or its principles or its objectives, or that no legislation may be repugnant to the Islamic Sharia. So that exists in constitutions like Pakistan, Iraq, Egypt, so on and so forth. And that historically never existed in Tunisia. Of course, under the secularist rule of Habib Bourguiba, and Zine El Abidine Ben Ali, and some activists and participants in the constituent assembly were hoping that there may be some kind of reference to this in the Tunisian constitution, and that was something that they had to compromise on.

 

(17:25)

Second, traditionally, Ennahda preferred a more radical parliamentary system as opposed to a mixed parliamentary and presidential system. Now, whether that is because they genuinely thought that it would be more democratic, some scholars say that this is a sign of principle because they also advocated for a lower parliamentary threshold such that would allow the inclusion of political parties that may be hostile to Ennahda. Others might claim that they thought that in free parliamentary elections based on proportional representation that Ennahda would always do well but might not be able to win an open presidential contest. Nonetheless, they also conceded on that and agreed to the mixed parliamentary presidential system that existed between 2014 and 2021. And then people often talk about this famous issue around speaking about gender relations in the Constitution and not to propose a certain kind of language in which it said that men and women have something called tekamul in Arabic, which is sometimes an English translated as complementarity, suggesting that there was a kind of lack of equality that women are complimentary to men.

 

(18:52)

Ghannouchi will sometimes say that that's a kind of misunderstanding, that it's a mutual completion to tekamul from the Arabic route kamala, to complete something. But nonetheless, many in Tunisia, there's a strong secular and feminist tradition in Tunisia, preferred to remove that ambiguity and stress, the equality of the genders and Ennahda compromised on that. So, at the level of ideology and principle, those are the things that people talk about a lot to sort of give evidence of a Ennahda’s willingness to kind of enter into a more secular constitution than they may have ideally wished for. Another thing that Ghannouchi himself writes about is the language by which the 2014 Constitution refers to human rights. So, it not only endorses the idea of human rights, but refers to the universality of human rights norms, and of course, accepting some of these human rights principles is one thing. Endorsing them as universal could be seen as somewhat epistemically controversial because it raises the question of the independence and authority of independent Islamic norms. And Ghannouchi defends this on the grounds that Islamists can't be opposed to human rights. There's nothing in human rights that we don't endorse or benefit from, and so there's no harm in endorsing them as universal. So, there was a number of both substantive and symbolic ideological areas on which they either agreed with their secular colleagues or acquiesced in order to bring about the 2014 constitution.

 

James M. Dorsey (20:46):

 

Sticking for a moment with the human rights issue, would the conclusion of what you were just describing be that Ghannouchi and Ennahda unambiguously endorsed the Universal Declaration of Human Rights, which is something that most Islamic groups and states have actually refused to do. They've done it conditionally, excluding certain articles, not Nahdlatul Ulama,, the Indonesian group being the exception. So, would that be a correct description?

 

Andrew March (21:23):

 

Yeah, I think it's a correct description. I also think that you have to keep in mind that there's a distinction between political context in which these things are worked out as political problems versus context in which they are discussed as intellectual or religious or ideological or epistemic problems. And so ,in his writings, Ghannouchi will still say that religious foundations for human rights are still superior to secular foundations because of their origin, because of their grounding, because of their moral motivation, and because human beings as creatures need some kind of orientation to the divine. He'll also say that the ultimately authoritative interpretation of human rights is given by religion. And so, I think we need to make a distinction between these things as political decisions versus the way they're debated in extra political ideological debates.

 

James M. Dorsey (22:29):

 

Would that also be a distinction in terms of how you define language that is used in the universal declaration where you…

 

Andrew March (22:42):

 

Yeah, I mean, so there's two ways in which Islamist thinkers often approach this. One, they go through human rights declarations, and they say, here are these things that we also value, freedom of conscience, social freedoms, freedom of religion, et cetera, et cetera. But Islam has its own interpretation of these things. And the other is to say, here is how these things are interpreted today. And because certain things like tyranny or authoritarianism are greater enemies, we do not prioritise a conflict with human rights norms because that's much greater priority. It's a much greater priority to overturn authoritarianism and despotism than to insist on our own interpretation in every particular context.

 

James M. Dorsey (23:43):

 

As one looks at the trajectory of Ghannouchi and Ennahda, what does it tell us or does it tell us anything about the potential evolution of non-violent Islamist groups more generally, like the Muslim Brotherhood?

 

Andrew March (24:00):

 

Yeah, I think it tells us a lot, and again, I think what it says is that focusing on internal ideological debates, focusing on intellectual moderation, focusing on these parties’ own internal trajectories or journeys is one thing, but focusing on the particular political conditions in which they're operating can be a lot more important. And so again, I've already said this, but think about the difference in the ideological contours of the constituent assemblies in Tunisia versus Egypt. And so, you had an overwhelming Islamist majority, a super majority in the Egyptian constituent assembly. And so, the Muslim Brotherhood, which was still the largest group, is both concerned about different kinds of secular or democratic parties, but also about the Salafis who are coming at them from the right, and they're concerned about the deep state and the security services in the army and so on and so forth.

 

(25:13)

And so their decisions are not only ideological, but they're also tactical and strategic, and they're based on judgments about the political terrain or look at the trajectory of something like Erdogan's AKP party in Turkey over the past 20 to 25 years. The language of Muslim democracy was also mobilised there, but you have to consider the various kinds of political and institutional rivals that they have faced over the past 25 years. Nationalist parties, the Turkish state, the judiciary, the army. And so, the emphasis on democracy or the emphasis on ideological agreement comes as a result of the immediate and medium-term political contest context. So, I would say where you have an Islamist or a post-Islamist party that's dealing in a relatively democratic transitional period that is one that's not curated or supervised by an army or an occupying force or the security services, the question is what is the overall kind of ideological scene? If they are counterbalanced by parties that have significant electoral weight, that will be a reality. And so, I think ideology and politics sort of move hand in hand in those situations.

 

James M. Dorsey (26:46):

 

Do you have a sense of how other Islamist or Muslim brotherhood inspired groups responded to the path travelled by Nahdlatul Ulama?

 

Andrew March (26:58):

 

Well, I think on the one hand there was a sense that good for them for avoiding a coup for participating in power. On the other hand, there was this sense, look how much they gave up. They had to give up everything about their ideology. They had to declare that they were no longer Islamist. They had to compromise on everything, and they were still regarded as unacceptable by many secular political activists and were still sort of subject to a coup. I think a lot of the lesson is not so much that Ennahda provides a path for us to political inclusion or participation or power. I think Erdogan is much, much more a symbol of that. But I think the lesson that you hear a lot from Islamists is we were told that democracy and compromise will be a path towards inclusion, but look at Tunisia, they compromised on everything and then they lost everything.

 

(28:01)

This is something that's stressed a lot when people talk about why Europe and why the United States should have done a lot more to prevent or to undo the coup, because there is a sense that if you want Islamist parties to believe that there is some incentive in democratic participation, you have to protect and reward those parties that go down that path. So, a lot of people, not unreasonably say the path towards inclusion and participation when you are not an overwhelming majority is a trap, and unless you're able to get rid of the deep state, get rid of the existing judiciary or army, you're just going to be sort of sitting there like a sitting duck waiting for them to res springing the trap.

 

James M. Dorsey (28:51):

 

It seems to me that post-2011 Ghannouchi was focused on Tunisian politics and his role and that of his party in the transition rather than on religious reform. As such, was his notion of a separation of religion and politics, a separation of mosque and state? And perhaps you can also talk to us about his acceptance of the principle of popular sovereignty alongside divine sovereignty and the significance of that.

 

Andrew March (29:24):

 

Right. Well, I think those are two separate questions. The first is that Islamist movements will sometimes speak about a political project which involves pushing for democratic elections or competing in democratic elections, or pressuring the state for certain compromises or using the courts or the judiciary for certain kinds of projects, and a preaching or dawa project in which you are trying to preach to people in your society about Islam, trying to persuade people to adopt a more pious lifestyle, who are trying to influence the public sphere in that way. So, technically what Ennahda said is that they separated their Dawa activities from their party activities. So, the party is not a comprehensive dawa and electoral apparatus. Those activities are separate. The metaphor of mosque and state doesn't really make any sense in Islamic countries because just the way that it might not make sense in Protestant countries because the metaphor of church and state is something I think is heavily influenced by a Catholic context in which the church is a corporate entity.

 

(30:42)

The church has a certain kind of hierarchy. The church has authority, the church may have land, it may have property, it may have certain kinds of legal privileges, and in certain kinds of Catholic context, it may have certain claims on an affiliation with the state. Now, in the Islamic context, it's not so much that there's a mosque that is there to participate in the state. It's that the state has an obligation to consult with religious scholars or to make the legal system look more like Islamic law or to create a kind of body like a Supreme Court, maybe partly composed of religious scholars to supervise the legal system. So, the metaphor of mosque and state I think is a bit of a distraction. What I would say in that regard is that Muslim democracy, in my opinion, amounts to is that everything is political, and so there's no extra political authority like a set of religious scholars or a body of such authorities that is set up to supervise the political institution.

 

(31:50)

But it also does not mean that elected officials have an obligation to not be religious or not to advocate for laws on a religious basis. Everything is kind of contested and worked out through politics rather than through extra political means. As to your second question, in my reading, the question of popular sovereignty underwent a kind of radical transformation of traditional theory as expressed in public freedoms. In the Islamic state, the people is sovereign because the people is pious. And so, the way that the duality of divine and popular sovereignty is worked out is that God is sovereign ultimately but has delegated all of his authority and the obligation to interpret and implement the Sharia to the ummah, to the people. But the people is qualified to do this because we assume that the essence of the people, at least in its overwhelming majority, is believing in pious and committed to this.

 

(33:01)

And so there's a kind of moral unity and moral identity to the people where it's a Muslim people that can be sovereign. By contrast, the turn to Muslim democracy recognises that the actually existing people is diverse. It's not only composed of pious Muslims. It's not only composed people that want to act as God's divinely appointed caliph on earth. It's composed of secular people and communists and feminist and nationalists. It begins with the fact that you have to accept that the actually existing ideological diversity in whatever society you're operating is a constraint on politics, and you accept that because you're committed to democracy at the expense of authoritarianism more than you're committed to the immediate triumph of your religious worldview. So, it's a kind of a commitment to agonistic pluralism where you say, we don't need to agree with everybody, and they don't need to prove their ideological legitimacy on Islamic grounds. They just need to prove that they're democrats, and then we can focus on what kinds of things we might have in common. So. it's a genuinely transformative shift in how you understand the nature of the people.

 

James M. Dorsey (34:28):

 

And in that sense, so from Ghannouchi or Ennahda’s point of view, would a country like Indonesia, which is essentially a secular state, would that qualify as a Muslim democracy in the sense or in the definition that Ghannouchi applies?

 

Andrew March (34:47):

 

I mean, as you probably know, Ghannouchi was quite popular in Malaysia and Indonesia, and he visited there and spoke on a number of occasions, and his thought I think had a lot of resonance there where there's an idea that certain aspects of politics ought to have an Islamic orientation or identity, but it's not completely monopolised by a kind of juridical framework. And so, scholars often talk about Malaysia, I think more than Indonesia, but possibly both as areas, where certain kinds of parties and movements saw themselves as simultaneously committed to democracy and to kind of having a place for Islam in the public sphere without believing that this is articulated through a kind of morally unified or homogenous Islamic state.

 

James M. Dorsey (35:42):

 

I realise this is a bit of a speculative question, but if we stay with Indonesia for a moment, and you look at a group like Nahdlatul Ulama, they advocate, I mean their fundamental position is that one needs to reform Sharia. If one wanted to really truly reform Islam, do you have a sense of what Ghannouchi’s response to that would be?

 

Andrew March (36:13):

 

Ghannouchi writes about that a lot. On the one hand, he will very often say that the Sharia is timeless and it's authoritative and it's obligatory, but what's timeless and authoritative and obligatory in the Sharia is its principles and its objectives, not its particular rules. And so, that's one point. He's very, very open to the idea that what the Sharia is, is constantly subject to renegotiation based on the interpretive position of certain communities, the worldly needs of certain communities at particular times, and an interpretation of the way that general principles are transformed into particulars. On the other hand, he will say that particularly in the turn to Muslim democracy, that politics has a certain kind of priority to the law in a traditional Islamic conception of politics, law precedes politics. We know what the Sharia is, even if there's some room for flexibility or reinterpretation that precedes politics, it gives politics its shape, and then politics is about the application of law.

 

(37:36)

Ghannouchi kind of flips that and says that politics is characterised by things like the need for stability, the need for consensus, the need for worldly prosperity, the need for worldly goods, and that prior to any kind of application of the law. But it may occur within that political context by political actors. And so, he's not necessarily giving a new jurisprudence where he says, here's a new version of family law or criminal law or a contract law based on my ijtihad (interpretation), he's sort of saying, we ought to see Sharia in these terms and then leave it to the democratic process in particular places to see how that might be articulated.

 

James M. Dorsey (38:23):

 

Articulated in terms of a change in Islamic jurisprudence or articulated in terms of articulating that in civil law?

 

Andrew March (38:38):

 

Well, both. So, the point is, if a particular country or context has a public deliberative process in which they debate the meaning of family law or polygamy or inheritance, and that is incorporated into the civil law, but based on let's say, debates around the Qur’an or Islamic jurisprudential tradition, then in that context you can say that there was an interpretation of Sharia that made its way into the civil law, but that's different from saying their reinterpretation or ijtihad is a new kind of fiqh that ought to be valid for other contexts.

 

James M. Dorsey (39:29):

 

If one takes the example of Ennahda for a second, again, in terms of their call for jurisprudential reform of Sharia, you've had two instances so far. One was in 2019, a fatwa by 20,000 Indonesian Muslim scholars that eradicated the concept of the kafir or the infidel in Islamic jurisprudence and replaced it with the concept of the citizen with equal rights irrespective of religion, ethnicity, gender, whatever. And you had a second pronouncement earlier this year, which was the elimination of the concept of a caliphate as such and replacing it with the notion of the nation state. What is your sense of what Ghannouchi’s response to that would've been? Is that something he would've embraced?

 

Andrew March (40:43):

 

Well, Ghannouchi takes the fact of the nation state as a kind of existing fact on the ground and a constraint, and so, they were very much a Tunisian political party committed to the idea of Tunisian nationality, and very often would use concepts like a Tunisian particularity or Tunisiyya based on the idea of a tradition of reform since the 19th century. Now, it doesn't follow from that the idea of worldwide Islamic unity perhaps under a single institution would be declared religiously defunct or something like that. It's simply not the level at which they operate.

 

James M. Dorsey (41:31):

 

Is there a reason for that or is that just simply the way things are?

 

Andrew March (41:36):

 

I mean, why would you bring that up? I mean, they're a political party that's trying to be successful in Tunisia. What do they stand to gain from entering into arcane debates about the fundamental status or validity of the nation state? It's just not relevant to their political activism.

 

James M. Dorsey (41:59):

 

Right. Andrew, this has been a fascinating conversation. I wish that we had more time to follow through on that, but I'm sure there will be future occasions for that. Thank you for joining the show today. Congratulations on the book, and I wish you all the best.

 

Andrew March (42:20):

 

Thanks so much for having me. I really enjoyed the conversation, and best of luck with the podcast in your newsletter.

 

James M. Dorsey (42:26):

 

Thank you, and all the best. Bye-bye.

 

James M. Dorsey (42:30):

 

Thank you for joining me today. I hope you enjoyed today's column and podcast. The Turbulent World with James M. Dorsey depends on the support of its readers. For the past 12 years, I have maintained free distribution as a way of maximising impact. I am determined to keep it that way. However, to avoid putting up a paywall, I need the support of a core of voluntary paid subscribers to cover the cost of producing the column in podcast. If you believe that the column in podcast add value to your understanding and that of the broader public, please consider becoming a paid subscriber. You can do so by clicking on Substack on the subscription button at www.jamesmdorsey.substack.com and choosing one of the subscription options.

 

Thank you. Take care and best wishes.

 

Dr. James M. Dorsey

India’s justice system is no longer independent by Saraphin Dhanani

 

India’s justice system is no longer independent  by Saraphin Dhanani

part-i

Indian Prime Minister Narendra Modi achieved a significant diplomatic feat this summer with his state visit to the United States, which was followed by an honorary role at France’s annual Bastille Day celebration. As the global spotlight shifted to New Delhi, which hosted its first Group of 20 summit on Sept. 9, some leaders replaced open-armed embraces with expressions of concern over the trajectory of India’s democracy.

Since Modi’s election in 2014, his political celebrity has been on the ascent, but India’s democracy has been on a disconcerting decline. In 2021, Freedom House downgraded India’s status from a free democracy to a “partially free democracy.” The V-Dem Institute went even further, categorizing India as an “electoral autocracy” and placing it in a category alongside its historical rival, Pakistan—an unsettling development for many Indians. Furthermore, India’s global Democracy Index ranking slipped from 27 in 2014 to 46 in 2022 as a result of democratic backsliding, according to the Economist Intelligence.

Democratic backsliding under Modi has taken on many forms—cracking down on political dissent and the free press, intimidating political opponents, vilifying ethnic and religious minorities, and revoking the autonomy of the Jammu and Kashmir territory (over which India, China, and Pakistan struggle for control), to name just a few. All of these issues have been covered by Western journalists, most notably by the BBC, in its two-part documentary “India: The Modi Question”—which the Modi government has banned by invoking emergency law. A common thread tying these issues together, beyond Modi himself, is India’s judiciary and its complicity in facilitating the country’s slide toward authoritarianism.

In well-functioning democratic systems, the judiciary plays a crucial role as a counterbalance to autocratic tendencies. But the Modi government has deftly deconstructed the scaffolding of the judiciary by refusing to appoint judges, influencing the outcome of watershed cases, quashing political opponents using the executive’s leverage in courts, and capitalizing on judges’ self-interest and identity politics. The court’s management of the citizenship verification project in the state of Assam and the lawsuits initiated by the ruling Bharatiya Janata Party (BJP) against leaders of opposing political parties serve as stark examples of the dismantling of the judiciary’s scaffolding in Modi’s India. 

Regrettably, the erosion of judicial independence in India is a critical aspect of India’s descent into authoritarianism that has largely been glossed over by Western media. The world’s most populous democracy now grapples with a weakened system of checks and balances, where the courts effectively act as instruments of the central government.

While Western attention has understandably centered on Israel, a crucial U.S. ally in the Middle East where similar trends have emerged, it is equally essential to scrutinize India’s parallel journey. The burgeoning alliance between the U.S. and India is evolving into a deeper and more substantial partnership. Concurrently, India is steadily moving toward a sectarian democracy—characterized by the majority group’s efforts to preserve a Hindu nation, while the international community largely remains silent—bolstered in part by India’s judiciary. In light of these developments, it is especially imperative to analyze India’s concerning political transformation.

In this article, I offer a primer on the structure of India’s judiciary and the moment its justices sounded the alarm about Modi’s rule, alerting the nation and the world to institutional erosion within the justice system. I provide deeper analyses of the state of India’s judiciary and the erosion of its independence in Parts II and III.

To grasp what went wrong with India’s courts, it’s important to understand the fundamental structure of the judicial system. India’s judiciary exists in a centralized ecosystem. Unlike the United States’s federal system of government, in which states and the federal government share power, power is concentrated in the hands of the central government in India. The judiciary, for its part, has a pyramidal structure, similar to that in the United States, with the district and subordinate courts at the bottom, followed by the high courts, and the Supreme Court at the top.

District-level judges are appointed by the governor of a state in consultation with the high court in that state. They are the first arbiters of justice in criminal or civil matters and have oversight from the high court in their state.

There are 25 high courts in India, approximately one in each state. In addition to supervisory jurisdiction over the district courts in their states, high courts also have appellate jurisdiction over the cases that come out of these district courts. And they have original jurisdiction over matters concerning the enforcement of fundamental rights. High court judges are appointed by the president after consultation with the chief justice of India’s Supreme Court (CJI), the governor of the state, and the chief justice of the high court. Their tenure is limited to the age of 62, at which point they must resign. 

A similar framework is in place for the Supreme Court under India’s Constitution, but a different procedure prevails in practice.

Under Article 124, the Supreme Court of India is composed of the chief justice of India and 25 other justices, all appointed by the president “after consultation with … the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary.” For any appointment other than the post of CJI, the CJI must also be consulted. Technically, to qualify for an appointment to the Supreme Court, one must be a judge on one or more high courts for at least five years, have been an advocate in one or more high courts for at least 10 years, or be a “distinguished jurist” in the opinion of the president. Once appointed, Supreme Court justices have limited tenure: They must retire from their post at the age of 65. 

In practice, though, the Supreme Court has wielded significant control over Supreme Court appointments since at least 1993 through the Collegium system. The Collegium is the technical name of the group of judges, comprising the four senior-most judges and the CJI, that make judicial appointment recommendations to the central government. Pending serious suitability or security concerns, the prime minister has historically approved the Collegium’s recommendations. Even in the case of suitability or security concerns, the government has returned the recommendation to the Collegium for clarification or reconsideration. If, after reconsideration, the Collegium reiterates the same candidate for appointment, the government is bound to accept the recommendation.  

The Supreme Court has original, appellate, and advisory jurisdictions in India. This means the Supreme Court carries out roughly six functions, the first four being congruent to the functions carried out by the U.S. Supreme Court: upholding and interpreting the Constitution (Article 133), reviewing cases on appeal that involve a substantial question of law (Article 133), resolving interstate disputes or disputes between the states and the Union through its powers of original jurisdiction (Article 131), and protecting fundamental rights (Article 32). But where things get hairy is in the various constitutional mandates that reinforce the concentration of power in the central government and promote the commingling of the three branches of government by authorizing the judiciary both to assist the legislatures in lawmaking and to play an advisory role for the executive.

Known as “judicial lawmaking,” the first of these two mandates implicitly authorizes the judiciary to create new laws from the bench when the enacted laws are inadequate to meet the ends of justice (Articles 13, 32, 226, 141). The 1991 Supreme Court trust and estates case of Rattan Chand Hira Chand v. Askar Nawaz Jung underscores the court’s authority as judicial lawmakers:

[N]or is it realistic to expect that [legislatures] will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society. … All courts are at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap.

Far from being criticized as “activism,” caution Indian legal scholars, this form of judicial lawmaking is an accepted part of the system. It “aims at evolution” to keep pace with the “changing needs of modern society” that Parliament may not be able to address quickly enough. 

In a similar vein, the second of the two hairy mandates is the Supreme Court’s formal “advisory jurisdiction.” Under Article 143, the president is permitted to consult the Supreme Court “[i]f at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, … of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court … and the Court may … report to the President its opinion.” In carrying out this mandate, the judiciary plays an “advisory” role; its opinions are not binding on the president, nor do they become law.

The commingling of the three branches of government casts a shadow on the integrity of the Constitution as a tool to safeguard democracy in India because the three branches of government are, by design, inherently interlinked rather than entirely separate and independent. Consequently, this interconnectedness poses a potential threat to the apolitical nature of the judicial branch, leaving it susceptible to political capture.

Indeed, this is precisely what has transpired. The Indian justice system has lost its ability to operate impartially, rendering it incapable of serving as the ultimate bulwark against the erosion of democratic values.

The pivotal moment came in 2018, four years after Modi assumed office, when the four senior-most members of the Supreme Court after CJI Dipak Misra—Justices Kurian Joseph, Jasti Chelameswar, Madan Lokur, and Ranjan Gogoi—took an unprecedented step and held a press conference to divulge the external influences over the judiciary and Misra’s complicity in the matters.  

This move signaled a recognition of and a reckoning with the attempted fundamental shift in India’s interbranch power balance and process of governance. Notwithstanding India’s institutional decay, it is—by constitutional standards—a democracy, not unlike the United States.

Imagine if the four senior associate justices of the U.S. Supreme Court—Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Elena Kagan—held a fireside chat on C-SPAN, or wrote an op-ed, suggesting that the president of the United States or his political party were meddling in Court matters. Not only would the integrity of the institution of the Supreme Court be questioned. There would be riots.

But no such thing happened in India. There was a substantial amount of debate, discussion, and concern within India’s legal and political circles, as well as in the media. But that didn’t fully capture the general public’s attention. Nor did the justices’ three grievances: (a) Modi’s refusal to finalize the memorandum of procedure for judicial appointments; (b) external influences over Misra and his handling of the investigation of Judge Brijgopal Harkishan Loya’s untimely death; and, relatedly, (c) Misra, as “master of the roster,” assigning politically salient cases or cases involving the BJP to sympathetic benches.

These three issues were ominous in no small part because they forewarned the three scaffoldings the Modi administration was deconstructing to weaken the judiciary’s might. “All four of us are convinced,” Justice Chelameswar stated, “that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country.”

Within only a few years, that is exactly what happened, and at least one of the justices who participated in the press conference would play a key role midwifing Modi’s authoritarian power.

https://www.lawfaremedia.org/article/india-s-justice-system-is-no-longer-independent-part-i

 

Part II

The independence of India's judiciary has faced mounting challenges during the tenure of Prime Minister Narendra Modi. The erosion of judicial autonomy has raised critical questions about the separation of powers, transparency, and the rule of law in the world's largest democracy.

The first installment of this series explained the constitutional framework of India's justice system. Its decay came sharply into focus when four senior justices of the Indian Supreme Court—Kurian Joseph, Jasti Chelameswar, Madan Lokur, and Ranjan Gogoi—publicly expressed their concerns that the judiciary was at risk of political capture.

Their collective protest forcefully denounced the central government's obstruction of judicial appointments. Moreover, they raised pointed questions regarding Chief Justice of India (CJI) Dipak Misra's handling of a sensitive investigation into the untimely death of a judge presiding over a high-profile case involving a leading figure of Modi’s Bharatiya Janata Party (BJP), Amit Shah. They also highlighted CJI Misra's alleged mismanagement of case assignments—particularly the assignment of politically salient cases or those involving BJP members to sympathetic judges. Underlying these issues was a pervasive feeling that the judiciary's independence was gradually succumbing to the influence of the executive branch.

Stalled Judicial Appointments

The issue of stalled judicial appointments centers on the Modi government’s continued delay in finalizing the so called, “memorandum of procedure” (MoP), the document which formally outlines the procedure for appointing judges to the high courts and the Supreme Court. This delay in finalizing the MoP began in his first months as prime minister and was one of the first signals that alerted the judiciary that something was awry.

The situation reached a critical juncture when, in an unprecedented move, the Modi government unilaterally rejected the Supreme Court Collegium's recommendation to appoint Gopal Subramanium to the Supreme Court, eschewing the customary route of returning the recommendation to the Collegium for further consideration. This marked a departure from established procedure—a bold action that spurned a core norm of Indian governance. 

As soon as the government rejected Subramanium’s nomination, Supreme Court institutional advocates mounted a public defense. They contended that Modi's rejection of Subramanium appeared to be retaliation for Subramanium’s pivotal role in the 2005 Sohrabuddin Sheikh murder case. Sheikh was affiliated with the marble industry and an Indian Muslim who, along with his wife, Kausar Bi, and a family associate, Tulsi Prajapati, was allegedly killed in a staged encounter by the Gujarat police. Sheikh's murder gained significant attention and controversy because it implicated Amit Shah—a trusted aide of Narendra Modi and the Home Minister of Gujarat at the time—as the principal conspirator in the case.

The circumstances surrounding the murder of Sheikh were complex. On the one hand, certain officials alleged Sheikh operated within the ranks of the Lashkar-e-Taiba terrorist organization based in Pakistan and was reportedly involved in a plot to assassinate Modi, who held the position of chief minister of Gujarat at the time. Other accounts suggested that Sheikh and his wife had extorted funds from marble traders. Many vehemently opposed these characterizations and contended that his murder was orchestrated by Amit Shah, who himself had deep-rooted connections within the marble industry, and, these critics alleged, wanted Sheikh killed.

Whatever the facts underlying Sheikh’s murder, it was Gopal Subramanium who recommended that the Supreme Court move the investigation from the local Gujarat police to the Central Bureau of Investigation (CBI)—the national crime investigative agency—for a comprehensive and impartial review. While the CBI falls under the executive branch, it possesses investigative powers that are insulated from direct executive control, and it can be directed by the judiciary to carry out investigations on the judiciary’s behalf.

The CBI’s investigation ultimately led to Amit Shah's arrest in 2010 and the levying of triple murder charges against him. As a result of the case, Amit Shah was prohibited from entering Gujarat for a period of two years. Modi’s rejection of Subramanium’s nomination became emblematic of the growing intersection of politics and the judiciary in India. 

Rejecting Subramanium was just the beginning. Although the central government reversed course and eventually approved Subramanium’s appointment, the debacle made one thing very clear: The Modi government wasn’t going to play by the Collegium’s rules. Soon after, the Modi government announced its intention to replace the Collegium system altogether. Some commentators who did not support Modi agreed that the Collegium was an opaque institution in need of reform. But seen in the context of the Modi government’s other moves against the judiciary, the announcement nonetheless raised serious concerns. 

These concerns were borne out when parliament passed the 99th Constitutional Amendment Act, introducing a new commission known as the National Judicial Appointments Commission (NJAC) under Article 124(A) to replace the Collegium system. The new commission retained some aspects of the Collegium system: The CJI and two senior judges (reduced from the customary four senior judges) would sit on the commission. The commission would also include the Minister of Law and Justice and "two eminent personalities to be nominated by … the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the [lower house of parliament]."

Lawyers and judges protested, decrying the participation of the Minister of Law and Justice in the naming of senior jurists. They further argued that the appointment of two "eminent personalities,” who were selected principally by the political branches of government, raised serious concerns regarding the judiciary's independence.

Not long after the bill was signed into law, the Supreme Court moved swiftly to quash it. In 2015, the Supreme Court ruled that the 99th Constitutional Amendment Act, and in effect the NJAC, was unconstitutional. Having “two eminent personalities” from outside the judiciary and the inclusion of the Prime Minister in selecting those “eminent personalities,” the Court reasoned, was an affront to the judiciary’s independence.

And so began the Supreme Court’s efforts to cajole the Modi government to propose new amendments to the Collegium in the form of an MoP. It did, but the new MoP included clauses that reinforced executive authority in the judicial appointment process, most notably by giving the executive unilateral powers to reject any Collegium-recommended appointee on the basis of “national security.”

The proposed MoP also punched a hole in the so-called reiteration process of appointments. It granted the central government the authority to reject a Collegium recommendation without any obligation to reconsider it, even if the Collegium reiterated the same recommendation. Adding to the controversy, the MoP suggested that all candidates endorsed by the Collegium would undergo vetting by a committee comprising two retired judges and an "eminent person." This move ran counter to the Supreme Court's ruling that the involvement of non-judicial individuals in appointment decisions posed an unconstitutional threat to judicial independence.

The Supreme Court vehemently rejected the government's MoP proposal, leading to deadlock. The resulting standoff was marked by a significant escalation in the central government's confrontation with the judiciary. Most notably, it began refusing to make judicial appointments. Vacancies in the high courts surged, rising from 35 percent in January 2015 to 42 percent in December 2015 and peaking at 45 percent in July 2016. This backlog left millions of cases pending, with 270 recommendations for the appointment of high court judges left unanswered by the central government, ultimately bringing the judicial system to a halt.

The CJI at the time, T.S. Thakur, directly pleaded with Modi to staff the judiciary, laying bare the harrowing reality of locked courtrooms becoming commonplace across India. Those pleas fell on deaf ears. 

CJI Thakur was perhaps the last great guardian of democracy in the Indian judiciary. He staunchly resisted political influence on the courts, standing firm against the central government’s MoP proposals that he believed encroached upon the judiciary's authority over judicial appointments. Upon his retirement in 2017, Judge Jagdish Singh Khehar, who had led the bench in the NJAC matter and ruled the commission unconstitutional, became CJI and took a different approach in dealing with the central government.

Shortly after taking office, CJI Khehar acquiesced to the central government’s proposed MoP, albeit without formally endorsing the procedures. Crucially, this MoP now granted the Modi government the authority to reject a judge's appointment on undefined national security grounds. Also under Khehar’s leadership, the Supreme Court turned a blind eye as a member of the BJP in parliament orchestrated the consolidation of a number of tribunals—which handled cases requiring specialized expertise—into other tribunals. This move also empowered the central government to dictate the rules governing the appointment and removal of tribunal judges and members. Notably, these changes were passed as a “money” bill—a type of bill known for being easier to pass than a standard bill— even though these changes stretched beyond the constitutional criteria for inclusion in a "money" bill.

Khehar's concession on the MoP and reluctance to entertain a petition challenging the constitutionality of the money bill deepened the erosion of the judiciary's remit and independence. His successor, CJI Dipak Misra, was similarly deferential to the Modi administration. By the time Justices Joseph, Chelameswar, Lokur, and Gogoi held their unprecedented press conference sounding the alarm about the erosion of judicial independence and the MoP, the Modi administration had already undermined much of the judiciary’s authority.

In his book, Modi’s India: Hindu Nationalism and the Rise of Ethnic Democracy, Christophe Jaffrelot painstakingly lays out example after example of judicial appointments that languished or were outright rejected by the Modi government, including the appointments of K.M. Joseph, Basharat Ali Khan, Mohammad Mansoor, Jayant Patel, Akil Kureshi, and Ramendra Jain, to name a few. The throughline among many of these and other rejections is that these judges and advocates had previously undermined Modi’s policies or ruled against prominent BJP members. 

Individuals the Collegium reiterated, like Basharat Ali Khan and Mohammad Mansoor, were denied for a second time. And judges that had reached a level of seniority in a particular high court and were in the running for chief judge were unilaterally transferred by the central government to a different high court without consulting the CJI—a flat out breach of Article 222 of the Constitution.

Multiple CJIs succumbed to executive influence over judicial appointments by acquiescing to the Modi government’s proposed MoP. But what began as unconstitutional interference in the appointment of judges soon snowballed into something even more grave—influencing cases pending before the courts. 

Executive Influence Over Pending Cases 

At their press conference, Justices Joseph, Chelameswar, Lokur, and Gogoi raised two other concerns in addition to those concerning judicial appointments: the mishandling of the investigation into the death of Judge Brijgopal Harkishan Loya (the judge presiding over the Sohrabuddin Sheikh murder case)  and CJI Misra’s seemingly biased distribution of cases as “master of the roster.” What was motivating their angst? CJI Misra’s violation of legal procedure, leading to favorable judgments for the central government.

The investigation into Judge Loya’s death is a sad chapter of the aforementioned Sheikh murder case. By the time Modi assumed office as prime minister in 2014, Modi’s close associate and contemporaneous BJP president, Amit Shah, appealed his case to the Central Bureau of Investigation (CBI) court and sought to have it dismissed due to insufficient evidence proving his culpability in the triple homicide. The day before Shah’s court appearance, the judge overseeing the trial was abruptly transferred to another high court. Judge Loya was appointed as the replacement, presiding over the case for roughly six months before his sudden death, which prevented him from rendering a verdict.

Mere weeks after Judge Loya’s death, initially attributed to a heart attack, a new judge was appointed to the case. He considered the charges filed against Shah, decided not to hear the supporting evidence, and swiftly dropped all charges against Shah, BJP politicians and affiliates, and the officers implicated in the case. Remarkably, the CBI did not appeal the court’s decision. Journalists decried the CBI’s passivity, contending that the agency had lost its insulation from political influence and had effectively become an extension of the executive branch.

What unnerved Loya’s family was the timing and cause of his abrupt death. Loya’s sister upped the ante when she disclosed that her brother had confided in her before his death that he had been offered a 1 billion Indian rupee bribe (about USD 12 million) by then-chief justice of the Bombay Court, Mohit Shah, to deliver a favorable judgment for Amit Shah. In response, members of the bar and others filed petitions before the Bombay High Court and the Supreme Court, asking that Judge Loya’s death be investigated. They provided evidence in the form of news clips and medical reports to cast doubt on the apparent cause of his death.

CJI Misra of the Supreme Court took up the matter. Procedurally, his bench was obligated to decide whether the petitioners had met the requirements for the Court to order an investigation into the matter. If not, the petitions could be dismissed without expressing an opinion on Loya’s death.

Misra dismissed the petitions but not before rendering an unsolicited and constitutionally-unneeded 114-page long judgment that “went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of [the Bench’s] interpretation of the documents before it, untethered from the existing rules of evidence.” In other words, the Court unilaterally rendered a verdict on a matter that was not before the Court—as the petitions were only requesting an investigation— and did so without a proper trial. This verdict effectively translated into Amit Shah's exoneration, as it precluded future investigations pertaining to Judge Loya's death from proceeding in court.

CJI Misra’s handling of the Loya investigation highlighted the growing tendency within the judiciary to stonewall cases that would otherwise yield inconvenient rulings for the government. But CJI Misra was not the most egregious actor in this regard. His successor, Justice Gogoi—the same judge who participated in the press conference—also adopted a do-nothing posture when a politically sensitive case came before him.

Under Gogoi’s tenure as CJI, the Court faced criticism for one of its most contentious episodes of inaction. In August 2019, the Modi government unilaterally abolished Article 370 of the Indian Constitution, which revoked the autonomous status of Jammu and Kashmir, a historically self-governing state whose boundaries include territory contested among India, Pakistan, and China.

In revoking Jammu and Kashmir’s autonomy, the Modi government split the state into two “union territories'' to be largely controlled by New Delhi—the Hindu-majority Jammu region, which the government allowed to form a legislative assembly, and the Buddhist-majority Ladakh region with a considerable Muslim population, which was prohibited from forming a legislative assembly. Further undermining the region’s autonomy, the central government used its powers under the controversial Public Safety Act of 1978 to engage in so-called “preventive detention” in the region. From political leaders to children, nearly 13,000 people were detained. In the wake of this assault on Indian citizens’ liberty, more than 600 habeas corpus petitions were filed in the Supreme Court challenging preventive detention. They remain pending to this day.

Gogoi’s failure to protect the liberty of the people of Jammu and Kashmir sent a clear message to the Modi government that Gogoi could be relied upon. Indeed, during his tenure on the Supreme Court, Gogoi actively supported the Modi government’s implementation of the deeply controversial National Register of Citizens (NRC) in the state of Assam.

The NRC required Assamese residents to prove their Indian citizenship by providing documentary evidence of their Indian heritage. If they could prove that their families had arrived in India before March 24, 1971, their citizenship would be considered verified.

Why this date in particular? In the days after March 24, 1971, Bangladesh declared independence from Pakistan, and a brutal, genocidal war erupted. Bangladeshi refugees— most of whom were Muslim—fled to India, and particularly to Assam, where they started new homes and raised their children and grandchildren. Despite their history in India, if their or their family’s arrival to Assam did not fall before the March 24, 1971 cut-off date, they would be deemed non-citizens of India. 

When the NRC was finally completed in August 2019, some 1.9 million people didn’t make the citizenship cut. Included in the “non-Indian” group were some ethnically Bangladeshi Hindus and others, including rural women, who didn’t have access to the necessary “documents” to prove their heritage, but the majority were ethnically Bangladeshi Muslims.

The Chief Minister of Assam declared that these “illegal foreigners” would be “barred from all constitutional rights, including fundamental and electoral,” such as Article 14 of the Indian Constitution which guarantees to “any person equality before the law or the equal protection of the laws within the territory of India” (emphasis added). Genocide Watch issued a warning for the state of Assam as thousands were detained in Assam’s six “foreign” detention centers. Those who sought legal recourse before Indian government administrators and special “foreigners’ tribunals” were denied due process and the right to counsel. Many committed suicide in the wake of their lives being turned upside down. 

Many wondered whether the judiciary was asleep at the wheel. How could the highest court of the world’s largest democracy not respond to one of the most arbitrary and punitive policies in India’s recent history?

In fact, the Supreme Court was closely involved in the crafting of the NRC from the outset. Despite being an administrative process reserved for the executive and the administrative bodies, the Court opted to “oversee” the NRC, gradually assuming greater authority over the project’s implementation. It helped decide NRC processes, deadlines, and even the types of documents that were admissible to prove citizenship, assuming significant executive responsibilities. As one scholar of Indian law noted, the court relinquished its role as the forum where “aggrieved people could go, if they felt that their rights were being violated—[because] after all, whom do you appeal to from an order of the Court, apart from the Court itself?”

By the time Gogoi took the reins as CJI in 2018, he institutionalized greater opacity over the administration of the NRC, including through his use of “sealed covers” that he had deployed in other politically sensitive cases. These covers kept the evidence he used to reach his judgments under seal, preventing citizens from assessing the logic of the Supreme Court’s decisions. Such a procedure can rightly be described as the “absolute antithesis of open justice” in a democratic society.  

By lending the Assamese NRC project the Supreme Court’s seal of approval, Gogoi cleared the way for the central government to expand its citizenship project. In December 2019, after Gogai ended his tenure as CJI, the BJP-led parliament passed the Citizenship Amendment Act (CAA), effectively implementing the NRC across India.

Most controversially, the CAA cleared a pathway for citizenship if the following three conditions were met: the migrant (1) was from Pakistan, Afghanistan, or Bangladesh; (2) was a member of the Hindu, Sikh, Christian, Buddhist, Jain, or Parsi religious communities; and (3) had arrived in India before December 31, 2014. Notably, undocumented Muslim immigrants and Muslim refugees (particularly those from historically persecuted sects, like Shias, Hazaras, and Ahmedis) were not eligible for citizenship. And because the Supreme Court exercised control over the administration of citizenship verification, there was no legal path to appeal violations of fundamental rights.

The Court’s role in the reorganization of Jammu and Kashmir and the implementation of the NRC in Assam are just two examples, among others, of Gogoi’s subversion of the judiciary’s historical role. Even in the 1970s when Prime Minister Indira Gandhi declared a National Emergency, suspending elections and civil liberties for two years, the judiciary retained its role as a forum where the aggrieved could challenge the executive's infringement of their civil liberties. In contrast, today's judges aren’t defying authoritarian tendencies of the executive. They’re accommodating them.

Beyond fundamental rights, the Court has also acted to undermine campaign finance restrictions. In 2017, before Gogoi assumed his CJI seat, the BJP introduced a bill under the guise of protecting donor privacy which enabled donors to make anonymous donations to political parties in the form of “electoral bonds.” Critics, including the non-profit Association for Democratic Reforms, argued that the scheme “opened the floodgates for corruption.” Notably, the bill eliminated the limit on the percentage of a company's profits that could be used for political donations and removed the barrier that prevented subsidiaries of foreign companies from participating in India's domestic electoral process. The latter seemingly undermined the Foreign Contribution Regulation Act, a law aimed at safeguarding the political process from foreign influence.

The Supreme Court held its first hearing on the matter in 2017 but did not reach a judgment. The next hearing was scheduled for Feb. 2019 by which time Gogoi would assume the role of CJI. Gogoi, however, did not render a verdict until after elections had already begun in April. Ultimately he rejected the petitioners’ request for a stay on the electoral bonds scheme and instructed the political parties to submit details of the donations they received in a “sealed cover” to the Election Commission of India—setting the deadline for 11 days after the election. A final tally showed that 95 percent of the “electoral bonds” had been purchased in support of the BJP.

In his brief tenure, Gogoi expedited the erosion of judicial independence in India. The Supreme Court, “for all its patchy history,” according to Indian lawyer Gautam Bhatia, “was at least formally committed to the protection of individual rights as its primary task.” Under Gogoi’s leadership, he concludes, it drifted “from a Rights Court to an Executive Court.”

Who is Really to Blame?

Executive capture of India’s judiciary did not happen overnight. Nor did it happen solely as the result of the executive’s actions or the ruling party’s leverage over the courts. The incentive structure of India’s judiciary—particularly with respect to post-retirement jobs—and judges’ apparent commitment to advancing their personal politics on the bench are additional contributing factors.

Unlike in the United States, India’s judiciary does not have lifetime appointments. Supreme Court and high court judges retire from the bench at the ages of 65 and 62, respectively. Judges may therefore have second careers after leaving the bench and are thereby incentivized to leverage their time on the bench to secure future employment. CJI Gogoi is a case in point.

His one-year tenure as CJI on the Supreme Court yielded crucial rulings for the Modi government that helped facilitate its agenda: Gogoi’s oversight of the citizenship verification project in Assam and his silence on habeas petitions filed by family members of detained Kashmiris were previously discussed. Gogoi delivered another victory for the Modi government when he ruled that the site of the Babri Masjid—a mosque that was demolished by right-wing Hindu nationalists in 1992—belonged not to the India’s Muslim community but to a Hindu litigant who claimed that the site had historically been a temple honoring the Hindu god, Ram. The so-called “Ram temple” in Ayodhya had been at the core of the BJP’s Hindu nationalist politics for three decades. Gogoi’s ruling provided crucial judicial support to the Modi government and Hindu nationalists on this contentious political issue.

Four months after Gogoi’s retirement, the government appointed him to parliament. His appointment came on the heels of sexual harassment allegations during his tenure as a judge. In the end, the allegations were waved away and Gogoi exchanged his gavel for a velvet seat in parliament’s upper house. 

Gogoi wasn’t the first to have been rewarded by the Modi government. As early as 2014, the central government appointed former CJI Palanisamy Sathasivam to be governor of Kerala. His appointment, critics argue, may have been a function of quashing a First Information Report (a document prepared by the police about a cognizable offense that needs further investigation) against BJP leader Amit Shah in the aforementioned Sohrabuddin Sheikh murders case. Sathasivam’s appointment may also have been related to his commuting the death sentence of Dara Singh, a leader of the Hindu nationalist militant group, Bajrang Dal, to life imprisonment for killing Australian missionary Graham Staines and his two children. “[T]hough Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur,” CJI Sathasivam wrote, “the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity.”

But the promise of post-retirement jobs are not the only forces swaying judges. Their personal politics may motivate them to reach outcomes that are simultaneously beneficial to the executive and to their own desires. Gogoi, for instance, controlled the citizenship verification program in Assam with keen interest, according to journalists, because of his own ethnic ties to Assam. Despite calls by journalists that Gogoi recuse himself from the case, Gogoi charged full steam ahead. 

Moreover, the arguably biased rulings from certain higher court judges on issues like banning hijabs in schools or exonerating right-wing Hindu nationalists involved in the destruction of mosques, the demolition of Muslim homes, and the lynching of Muslims help bolster the Modi government’s pro-Hindu agenda. Do we imagine that while a majority of Indians have been galvanized by Modi’s Hindu nationalist ideology, India’s judges have been immune from such thoughts?

But perhaps the more urgent question is, why have such a high percentage of Indians become comfortable with the decay of judicial independence in their country? Indian journalist Debasish Roy Chowdhury's interview on the Lawfare podcast paints a bleak picture about such democratic backsliding: “Fifty-three percent of Indians say that they would rather support military rule.” And in Chaudry’s book, To Kill a Democracy: India’s Passage to Despotism (co-authored with John Keane), he answers the question about judicial decay even more forcefully:

Inordinately slow, poorly organized, and popularly perceived to be the playground of the rich and the powerful, the criminal justice system is seen to be so broken that even the dysfunctional and corrupt police force is reckoned to have a better shot at ensuring justice than the courts.

No one has arguably benefited more from this dysfunction than Modi himself. In 2002, Modi, then serving as the chief minister of Gujarat, was at the center of one of India's bloodiest post-independence episodes. For days, Hindu mobs roamed the streets killing Muslims and burning their homes and businesses. While some Hindus were killed in reprisals, the episode was uniformly recognized as a startling, widespread attack on Gujarat’s Muslim community. 

Multiple investigations probed Modi's involvement in the riots, particularly his failure to prevent the violence and protect the victims. Most consequential among these investigations was the probe conducted by the Special Investigation Team (SIT) appointed by the Supreme Court of India. After conducting an inquiry and examining various pieces of evidence, including eyewitness testimony and government records, the SIT concluded there was no "prosecutable evidence" against Modi and that there were insufficient grounds to proceed with criminal charges against him. 

But the ruling did not absolve Modi of responsibility in the eyes of much of the public. Critics pointed to the dysfunction of the justice system as a reason why Modi was treated with “kid gloves.” The SIT’s investigations were deemed inadequate by senior advocate Raju Ramachandran, who was also appointed by the Supreme Court as amicus curiae to investigate allegations of Modi’s complicity in the riots. Ramachandran concluded: “the offences which can be made out against Shri Modi, at this prima facie stage” include “promoting enmity between different groups on grounds of religion and acts prejudicial to (the) maintenance of harmony.” Former Supreme Court judge, Parshuram Babaram Sawant, also conducted an inquiry into the 2002 Gujarat riots as part of an unofficial body known as the Indian People's Tribunal, and, contrary to the SIT, found evidence to conclude that Chief Minister Modi bore some level of guilt for his actions in the Gujarat riots. “The genocide started after Narendra Modi instructed his ministers and top police officials against interfering” with the rioters, Sawant concluded. Despite these reports and criticisms, however, prosecutors have not pursued charges against Modi. 

Yet the handling of Modi’s case is just the tip of the iceberg when it comes to India’s judicial dysfunction. Far more common is gross mishandling of cases related to average citizens.

A jaw-dropping 44 million cases are still pending in Indian courts, 87 percent of them in the district, or lower, courts. Nearly 3.3 million cases have been pending for more than a decade. Cases remain pending for an average of 3.5 years in some states. And those that traverse the entirety of India’s judicial hierarchy—from the trial court to the Supreme Court—take, on average, 13.5 years to reach a resolution. With this mounting backlog, overworked judges spend an average of 2.5 minutes hearing cases and approximately 5 minutes reaching a judgment. A high court judge estimates that it would take 320 years to clear the backlog, which, perversely, acts ”as a shield [for courts] to evade politically sensitive issues,” notes one legal scholar.

Meanwhile, 70 percent of Indian prisoners are simply awaiting trial, even though only 45 percent of pre-trial detainees are ever convicted. And there is no restitution for those wrongly detained, no matter the length of their detention.

Additionally, almost 80 percent of India’s 1.3 billion people qualify for legal aid, but pro-bono lawyers are hard to come by, and due to chronic underfunding of the system, the quality of legal aid, when rendered, can be lackluster. The lucky few who do make it through the courthouse doors rarely consider themselves lucky. They routinely contend with “[b]ogus witnesses, fixers, and …large scale corruption [including] bribery against top judges.”

Put simply, when the aggrieved can’t turn to the judiciary to seek justice, why would they rise to defend it from decay?

https://www.lawfaremedia.org/article/india-s-justice-system-is-no-longer-independent-part-ii

 

Part III

The first two installments in this series detailed the nature and role of India's justice system and how the Modi government has undermined its independence. By halting judicial appointments, exerting influence on pending cases, and offering judges who provide favorable rulings with plum political jobs, India’s justice system has been largely tamed—equal parts unable and unwilling to be the guardian of India’s democratic, secular, and egalitarian constitutional mandates. 

But a court tamed is only so useful. Far more valuable is a court mobilized and deployed. Indeed, increasing evidence suggests that attention has shifted from taming the courts to weaponizing them, in particular to undermine opposition figures ahead of next year’s general election. 

Consider, for example, the defamation case brought against Rahul Gandhi, recent leader of the BJP’s rival political party, the Indian National Congress. At a rally in 2019, Gandhi hinted at alleged corruption by saying, “One small question, how are the names of all these thieves ‘Modi, Modi, Modi’? Nirav Modi, Lalit Modi, Narendra Modi, and if you search a little more, many more Modis will emerge.”

Shortly thereafter, Pranesh Modi, a BJP lawmaker from Gujarat—the state in which Prime Minister Narendra Modi led as chief minister for over a decade—filed a defamation case saying Gandhi had defamed everyone in India with the last name Modi. From the time of its filing in 2019, the case moved at the sluggish pace typical of India’s justice system. Months went by between hearings, and when the judge rejected the plaintiff’s request that Gandhi appear in person, the BJP lawmaker took the unusual step of asking that the case be halted indefinitely.

Then in February 2023, in the lead up to crucial state elections and with the 2024 general election on the horizon, Pranesh Modi suddenly asked that the case be unfrozen, claiming that new evidence had emerged, which he ultimately failed to produce. Now in the hands of a different judge, magistrate judge Hadirash H. Varma, the case progressed with unprecedented speed. In the span of just 20 days, a total of seven hearings were held, and a verdict was rendered: guilty of criminal defamation. 

Defamation accusations are particularly fraught in India because India’s defamation laws are unlike those of other major democracies. A relic of 19th-century British colonial libel laws that the United Kingdom repealed in its own country in 2009, defamation in India can be tried as a civil or a criminal offense, and the bar for defamatory speech to be considered criminal is startlingly low. Any statement, whether true or false, that “harm[s] a person’s reputation” regardless of whether said person is alive or deceased, constitutes criminal defamation under the Indian Penal Code.

Compared to defamation laws in the United States, which are strictly matters of civil law (and hence preclude jail time) and which require the plaintiff to show that false or inaccurate statements were made with “actual malice,” India’s criminal defamation laws can be a potent tool for hamstringing political rivals. 

More insidious than the conviction, however, was Gandhi’s sentence. The maximum sentence for a defamation conviction is two years, but courts typically settle for a fine. In Gandhi’s case, the magistrate court sentenced him to the maximum sentence. The two-year sentence also meant Gandhi would face an additional penalty: disqualification from parliament. 

Under Article 102(1)(3) of the Indian Constitution and Section 8 of the Representation of the People Act, a two-year sentence is the statutory minimum penalty that disqualifies a sitting member from parliament. Indeed, just a day after the court found Gandhi guilty of criminal defamation and before Gandhi had the chance to appeal his case, the lower house of parliament disqualified him from his parliamentary duties. And with the prospect of spending the next two years in jail, his ability to stand in the 2024 general election was thrown into doubt.

Gandhi appealed his case to both the lower court and the High Court in Gujarat. Neither agreed to hear his case. When India’s Supreme Court did take up his appeal on Aug. 4, 2023, they deliberated for no more than two hours before reaching a verdict:

[N]o … reason has been assigned by the learned Trial Judge while imposing the maximum sentence of two years. … [I]t is to be noted that it is only on account of the maximum sentence of two years imposed by the learned Trial Judge, the provisions of sub-section (3) of Section 8 of the Representation of the People Act, 1950 … have come into play. Had the sentence been even a day lesser, the provisions of … the Act would not have been attracted. … We are of the considered view that the ramification of sub- section (3) of Section 8 of the Act are wide-ranging. They not only affect the right of the appellant to continue in public life but also affect the right of the electorate, who have elected him, to represent their constituency. … We, therefore, stay the order of conviction.

The Court stopped short of implying “foul play” at the magistrate level, but in suspending Gandhi’s conviction, the Court made plain that the maximum two-year sentence was suspiciously punitive given its connection to the disqualification statute. Even more suspicious was magistrate judge Varma’s subsequent promotion to the district court in the weeks after he handed down Gandhi’s sentence. 

Gandhi, scion of the powerful Gandhi political dynasty, took the shrewd step of highlighting his case on a tour across the United States while India’s Supreme Court decided his fate. Ultimately, a favorable result was handed down. A lesser-known political figure, Manish Sisodia, however, may not be so lucky. 

Sisodia was deputy chief minister of Delhi and leader of the Aam Aadmi Party (AAP) from 2015 to February 2023. At the time, the AAP had begun to challenge the BJP’s hold on states such as Gujarat—Modi’s home state—and parts of Delhi, before Sisodia was arrested in February 2023 for corruption charges related to his official liquor licensing responsibilities in Delhi. Curiously, Sisodia was arrested for the very thing he was dispatched to do in his official capacity: reform and execute liquor licensing laws. The CBI justified his arrest on the grounds that Sisodia gave “evasive replies” when questioned about licensing practices in Delhi and failed to “cooperate with the investigation.” 

Sisodia remains in custody. On Sept. 15, 2023, India’s Supreme Court deferred hearing his bail pleas until early October. His chances of standing in next year’s election look bleak. 

It’s true that Indian government leaders have long used charges like corruption, tax evasion, and defamation against opponents. During the “National Emergency” period of the 1970s, for example, Prime Minister Indira Gandhi used income-tax raids to intimidate her opponents or jail them. And when an Indian National Congress-led coalition governed India from 2004-2014, 43 of the 72 political leaders (or roughly 60 percent) investigated by the Central Bureau of Investigation (CBI) belonged to an opposition party. 

But what sets the Modi government apart is the scale and systemization of the enterprise and the judiciary’s complacency in the face of it. Since the BJP-led coalition government took charge in 2014, the number of CBI probes of prominent political leaders has reached 124, according to a report published by The Indian Express. Of these leaders, 118 individuals—or 95 percent of those being investigated—belong to the opposition, despite the fact that the opposition’s footprint has shrunk since Modi’s tenure as prime minister. 

In his book, Sciences Po professor Christophe Jaffrelot details what he calls a “politics of intimidation” under Modi. He notes, for example, that during the 2019 campaign for state elections in Maharashtra, the law enforcement agency in charge of combating economic crimes in India registered cases against the Nationalist Congress Party (not to be confused with the aforementioned National Congress party) leaders Praful Patel, Sharad Pawar, and Ajit Pawar. In addition, the Congress party leader of the state of Karnataka, D.K. Shivakumar, was arrested in an income-tax-related case while the BJP made a public push to reclaim control of the state. Others, notes Jaffrelot, were put under house arrest, “to prevent them from canvassing or taking part in protest movements.” Among these included former chief minister Chandrababu Naidu and his son, Nara Loksh, of the Telugu Desam Party and former home and finance minister P. Chidambaram of the National Congress Party, to name just a few. Moreover, Chidambaram faced 106 days of pretrial incarceration in 2019 for alleged money laundering, despite the CBI never leveling any charges against him. Naidu was arrested on Sept. 9, 2023 for alleged misappropriation of funds and remains in custody. 

The courts, meanwhile, tacitly endorse this practice of burying opposition figures in legal battles by denying bail, for example, or keeping the accused in pretrial custody without charges being leveled against them for months, if not years. 

Importantly, to presume that all of the accused are victims of unfounded allegations of corruption would be unwise, as corruption is endemic in India and is hardly the domain of one party or another. These developments might therefore be better described as the selective prosecution of political opponents. Lending support to this theory, the accused can often find an escape hatch out of their legal troubles if they align themselves with the BJP. Referred to by opposition figures as the "washing machine" strategy, it's not unusual for charges to miraculously vanish or for black money to “turn white” (namely, ill-gotten gains made legal) if the accused agrees to switch parties and join the BJP.

In addition to their political adversaries, the ruling party has taken a heavy-handed approach towards prominent civil rights advocates like Indira Jaising and Anand Grover, and the courts have been reluctant to intervene. The government has also exploited a colonial-era antiterrorism law, the Unlawful Activities Prevention Act, to silence dissent. Particularly striking is the suppression of student protesters who rallied against the divisive Citizenship Amendment Act, widely perceived as an anti-Muslim measure, as discussed in Part II. In the last five years, more than 8,300 people have been arrested and incarcerated under the antiterrorism law. Only two percent of those cases resulted in conviction from 2016 to 2019. 

The discretionary power vested in judges to prolong pretrial detention indefinitely under this law emerged as one of “Modi’s most repressive tools.” This grim reality has led to the prolonged suffering of thousands and, tragically, the death of 84-year old Father Swamy, a Jesuit priest and activist with Parkinson’s disease, who was repeatedly denied bail in spite of his diminished health.

More recently, extended pretrial detentions have touched the pinnacle of pop culture in India: Bollywood. Bollywood is notable not only for its immense reach throughout the world (an estimated four billion tickets are sold annually) but also for the influence its largest stars wield over public opinion within India. 

Underscoring this phenomenon is the treatment of Bollywood’s largest star, Shah Rukh Khan, a beloved figure across India and around the world. According to government critics, Khan’s immense celebrity, coupled with his statements criticizing the growing intolerance of Modi’s India—not to mention his Muslim heritage—has made him a target of the BJP’s ire.

In 2021, Khan’s son, Aryan, was arrested as part of a drug raid on a party boat. Despite not finding any drugs on him, or even conducting a drug test, the central government-controlled Narcotics Control Bureau charged him under laws “related to possession, consumption and sale of Illegal substances.” He was detained in an overcrowded jail for 25 days and denied bail twice, once by a magistrate court and once by a special court that hears narcotics cases—an oddity given that the offense was minor enough for detainees to typically post bail without delay. 

Although charges against Khan’s son were eventually dropped six months later, Mehbooba Mufti, the former chief minister of Indian-administered Kashmir, alleged that Aryan Khan was targeted “because his surname happens to be Khan.” Indian author, Arundhati Roy, put it more simply: “These days in India you are arrested and jailed for who you are. Not for what you have done.”

Such concerns are emblematic of the pervasive feeling across many segments of Indian society that prosecutors, ministers, judges, and even Supreme Court justices are increasingly behaving in ways that belie the system’s duty of impartiality. As this series has detailed, the mounting evidence that India’s judicial system is no longer impartially assessing questions of law and justice has grown in recent years. Through stalling judicial appointments, influencing the outcome of watershed cases, and burying opponents in legal battles, the Modi administration has chipped away at core judicial norms, leaving India to navigate the coming period of geopolitical ascendancy without genuine rule of law.

This is concerning not just for India’s 1.4 billion people but for the direction of world affairs more generally. An India in which the judiciary is pressured by the executive in unconstitutional ways is an India that the many governments around the world looking to partner with India will find increasingly difficult to support. Whether these developments can be reversed, only time and the ballots of Indian voters can tell. For now, we would be wise to amend our understanding of how democratic the world’s largest democracy really is.

https://www.lawfaremedia.org/article/india-s-justice-system-is-no-longer-independent-part-iii