After Fractured Mandate, Will Judiciary Rise up to Challenges to Constitution?

By far the biggest outcome of the 2024 general elections for India is that the ruling coalition will no longer be able to amend the Constitution and convert the country from a secular State to a Hindu rashtra.

During the election campaign, the Prime Minister of India memorably said, “Ram is my idea of India.” The people of India have denied him the opportunity to see his dream come true through an amendment to the Constitution.

Lallu Singh, the Bharatiya Janata Party (BJP) candidate from Faizabad (Ayodhya), who made a remark that his party wanted 400 seats to amend the Constitution or introduce a new one, has lost the election!

During the election campaign, the Prime Minister of India memorably said, “Ram is my idea of India.”

The present coalition government of the National Democratic Alliance (NDA), will also not be able to amend the Constitution by deleting Article 16, which gives reservations in public employment to socially and economically backward classes.

The core of the Constitution will remain protected. The people of India have not just exercised their franchise, what we saw was the closest thing to a referendum on the basic features of the Constitution.

The question looming large in people’s minds was whether we will remain a secular nation or become a nation governed by Sanatan Dharma.

India has chosen to retain the core of the Constitution, which is secular, democratic and republican. Those who wanted to replace the system of governance with their version of “Ram Rajya” have been defeated.

Those who wanted to set up the norm of ‘cultural nationalism’, whatever that means, above the Constitution in the name of decolonisation of the country, have lost the unjust ideological war.

The Constitution is the end product of the aspirations of India’s Independence movement and to deny the legitimacy of the Constitution in the name of decolonisation was an attempt to deny the sacrifices of the freedom fighters and those who led India to Independence.

Fortunately, voices that were calling into question India’s Constitution have been met with a resounding answer by India’s electorate.

The Constitution is not a colonial document, far from it; it makes a break with obscurantism and entranced hierarchies and inequalities constructed by Brahmanism.

What does the future hold for the judiciary?

Tradition and convention demands that law officers of the government of India resign even if they are to be continued by the incoming government. So far, we have not seen the Attorney General for India or the Solicitor General of India or the Additional Solicitors resign. This was required to be done by them.

In the recent past, we have seen the critical role of law officers of the government of India in courts eroded by their inability to take an independent stand from the government they represent.

The people of India have not just exercised their franchise, what we saw was the closest thing to a referendum on the basic features of the Constitution.

They seem to have forgotten that they do not take instructions from the government but advise the government. In my wish list, I would like to see this happen.

We are entitled to ask who will be the Attorney General for India, who will be the Solicitor General of India and who will be the other law officers of the incoming government. At the very least, they must not be people who deny the legitimacy of the Constitution of India and its basic features.

It has been famously said that when there is a strong government, the judiciary is weak. In recent years, we have witnessed an ebb in the confidence people vest in the judiciary. Petitioners in jail have chosen to withdraw their petitions for bail rather than have them heard by certain judges known for their proclivity to deny bail.

Another recent trend, and an unfortunate one that cannot be trivalised, is the surge in criticism against the judiciary, bookmarked by the rising number of memes calling out the judiciary for its inability to uphold the fundamental rights of the people and toeing the government line in all major challenges to governmental action or legislation.

Only time will tell if the judiciary can regain its independence voice. For all our sakes, let us hope it does sooner than later.

At present, there are two vacancies in the Supreme Court. The third vacancy will arise on September 1 this year, when Justice Hima Kohli demits office. Thus, there are a total of three vacancies in the Supreme Court to be filled up before the current Chief Justice of India (CJI) Dr D. Y. Chandrachud retires on November 10 this year.

Those who wanted to replace the system of governance with their version of “Ram Rajya” have been defeated.

We need to keep a watch on who will be appointed to these vacancies sooner or later. Can we hope to see those committed to the ideology of the Preamble to the Constitution be appointed, or will there be more Victoria Gowris alluding to two of India’s minorities as “White Terror” and “Green Terror”.

Who really decides who becomes a judge of the Supreme Court of India? In theory it is the collegium, we know, but why are candidates recommended by the collegium not being appointed. What complex political calculus results in the delay of appointments to create a desired seniority among judges? Even the judges sought to be transferred by the collegium are not being transferred by the government.

We now have a system in which the future Chief Justice of India is handpicked for appointment well in advance. While making an appointment to the Supreme Court, seniority does not appear to be the criteria anymore.

In a situation such as this, the government may be tempted to appoint those who it thinks will favor them. It is here that we expect the judiciary to demonstrate its independence.

Finally, let us look at the critical cases pending in the Supreme Court for decision:

• The validity of the Places of Worship (Special Provisions) Act, 1991 is pending before the Supreme Court. This case is of foremost importance since it is linked to the secularism of our country. The fate of litigation arising from the Gyanvapi mosque and the Krishna Janmabhoomi–Shahi Idgah case depends upon what the court will rule on the validity of Places of Worship Act.
• The challenge to the validity of the Citizenship (Amendment) Act (CAA), 2019 is yet another crucial case. This case will decide whether the Parliament can grant citizenship to immigrants based on their religion alone and the outcome of the case will also impact our understanding of secularism in this country.
• The Supreme Court is yet to hear a challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, which excludes the CJI from the committee to appoint the Chief Election Commissioner and Election Commissioners.
• The validity of the Prevention Money Laundering Act, 2002 (PMLA) and also the correctness of the judgment in Vijay Madanlal Choudhary versus Union of India, in which a three-judge Bench upheld contentious provisions of the PMLA, likely to be heard by the Supreme Court in the coming days. We have seen how the PMLA has been misused by the ruling government for political gains by breaking the opposition parties and threatening legislators from the opposition.
• A larger Bench of the Supreme Court is yet to hear the validity of the passage of the Finance Act, 2017 as a money bill, which introduced problematic changes in the PMLA.
• The judgment on the validity of Section 6A of the Citizenship Act, 1955, which granted legislative sanction to the Assam Accord extending citizenship to those who entered the state of Assam up to and including on March 24, 1971, is awaited. The law has been challenged on the ground that no illegal immigrants who entered Indian territory after 1947 should be granted citizenship. 
• The judgment of a seven-judge Bench on the question whether the Aligarh Muslim University is a minority institution is also awaited. This case is directly linked to the interpretation of Article 30 of the Constitution, which confers the right on minorities to establish and administer educational institutions of their choice.
• The judgment on the power of state governments to sub-classify based on relative backwardness within the Scheduled Castes (SC) and Scheduled Tribes (ST) is also awaited. It is likely to impact whether backward among the SCs/STs including de-notified tribes and Vimukta Jatis can be granted separate quotas within the SCs/STs quotas.
• The Supreme Court is yet to rule on the validity of Section 124A of the IPC, which provides for the offence of sedition.

All these laws entail violations of the right to life and liberty as guaranteed in the Constitution. In addition, the challenge to the CAA goes to the very root of granting citizenship based on religion alone.

We have seen very often that governments try to achieve through courts what they cannot achieve politically or on the floor of the legislature. At this point, it is not possible to see which way the court will lean or how it will read the message of the elections.

What kind of litigation is likely to reach the court after elections? We are likely to see petitions being filed by losing candidates challenging elections including on the ground that the winning candidate had campaigned on the basis of religion.

Only time will tell if the judiciary can regain its independence voice. For all our sakes, let us hope it does sooner than later.

Finally, on a happy note, the pre-general elections period saw another election, the election of the president of the Supreme Court Bar Association (SCBA).

Senior counsel Kapil Sibal won by a majority of 1,070 votes. This appears to indicate that he has bridged the divide between the right and liberal constituencies at the Bar. This, by itself, is a healthy trend as it stopped the sharp polarisations we have seen at the Bar in the recent past.

Since 2014, the ruling party has adopted a strategy to get things done through surrogates by filing petitions in courts to achieve a political aim. Hopefully, this trend will become a thing of the past.

One also hopes to see the SCBA at the forefront for undoing the damage that has been inflicted on civil liberties in this country in the last decade.

We have seen very often that governments try to achieve through courts what they cannot achieve politically or on the floor of the legislature.

The journey must begin with a demand that the three new criminal laws are not implemented until there is a judicial audit of the implications of these laws for the citizens of India and access to justice.

Indira Jaising is a noted human rights lawyer and a senior advocate at the Supreme Court of India. She is also a co-founder of The Leaflet.