In Modi’s rule, court failed to fulfill constitutional role, played cheerleader for govt’s agenda

New Delhi: The Indian Supreme Court finally ruled in favour of the government of Narendra Modi by validating, on December 11, the very controversial decision of the Prime Minister taken on August 5, 2019 to repeal the special status of Jammu and Kashmir.

In the wake of this decision, the Hindu nationalist government brutally divided the territory into two distinct regions, now demoted to the rank of territories administered directly by New Delhi.

A few months before the legislative elections scheduled for spring 2024, the Prime Minister, who is seeking a third term at the head of the country, welcomed a “historic” judgment and hopes to draw electoral dividends from it.

The recovery of Kashmir, the only Muslim-majority region, was on the agenda of Hindu nationalists for a long time, and represents a victory for supporters of Hindutva, this ideology which advocates the superiority of Hindus and whose objective is to make secular India a Hindu nation.

For rights defenders, this is a new blow to democracy, while the highest court in the country has long been considered a bulwark against the excesses of the executive. The court’s judgment further damaged citizens’ confidence in the institution. For Fali Nariman, one of the country’s most respected constitutional lawyers, this decision is “totally wrong and wrong” from a legal point of view. Like many other jurists, Mr. Nariman believes that the government’s decision was “in accordance with neither the provisions of the Constitution nor the well-established principles of federalism.”

Since the Hindu nationalists came to power in 2014, the Supreme Court, although with very broad powers, has been accused of having capitulated to the government of Narendra Modi. Opponents, activists but also the most eminent legal specialists judge that it is failing in its duties. “During the Modi period, the court failed to fulfill its constitutional role of checking government excesses, but it also played cheerleader for the government’s agenda,” wrote Anuj Bhuwania, a professor at the law school of Jindal University, near New Delhi.

Over the past ten years, the highest court has certainly delivered historic judgments, notably in 2018 when it decriminalized homosexuality. In 2017, it also banned divorce by express repudiation of the woman, previously authorized in the Muslim community. But “some of the progressive judgments on gender have fueled the majoritarian agenda” of the Bharatiya Janata Party (BJP, Indian People’s Party), Modi’s party, which “sought to promote the idea that Muslims alone are backward and need reforms,” says Nandini Sundar, a sociologist at the University of Delhi, in an essay.

In highly political cases, however, the court has refused to rule. Thus, in 2018, it did not wish to open an investigation into the accusations of corruption and influence peddling which weighed on the government regarding the sale, in 2016, by Dassault Aviation, of 36 Rafales to India. It has not yet ruled on the constitutionality of the citizenship law adopted in 2019, and deemed fundamentally discriminatory against Muslims by the United Nations, nor on the possibility for donors to finance a political party anonymously.

The court has rarely ruled against the government of Narendra Modi. In 2019, in one of its most emblematic verdicts, it authorized the construction of a temple to the glory of the Ram in Ayodhya. On this disputed site, there was once the Babri Mosque, destroyed with bare hands by a horde of Hindu extremists in 1992. This episode gave rise to inter-communal riots causing the deaths of more than three thousand people in the country.

“Every time a difficulty arises, the court seems to find an excuse: on sensitive issues, it either validates the government’s decisions, or it refuses to hear the cases,” summarizes Aakar Patel, head of Amnesty International India until 2019, when the organization closed its offices as a result of harassment from authorities. “Judges who are in favor of the government are offered a sinecure at the end of their mandate,” accuses the activist.

The former President of the Supreme Court, Ranjan Gogoi, who oversaw the Ayodhya judgments and the Rafale sale, was thus appointed member of the upper house of Parliament in 2020. Abdul Nazeer, the only Muslim magistrate, who participated in the deliberation on Ayodhya, was appointed governor of the state of Andhra Pradesh after his retirement. Then, in 2021, a few months after leaving the Supreme Court, Justice Arun Mishra was appointed head of the National Human Rights Commission. Conversely, the government can block appointments of magistrates deemed less favorable, by refusing to officially notify them. This was particularly the case for judge Akil Kureshi, who “had played a decisive role in legal proceedings against Amit Shah, the interior minister and right-hand man of Narendra Modi,” recalls Ms. Sundar.

“Beyond the power of pressure of the government, Hindutva has permeated the whole of Indian society, the judiciary today thinks in terms which are compatible with this ideology or, at least, it does not don’t offend,” regrets Aakar Patel.