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