Ayodhya to Article 370: Apex Court a partner in majoritarian project? Global study thinks so

 

By Rajiv Shah 

In what might be interpreted as a move to globalise the contentious issue of India's judicial independence, a new academic study published in a research journal associated with the Heidelberg University, Germany, "Indian Politics & Policy", delivers a devastating verdict on the Supreme Court of India’s performance during Narendra Modi’s tenure from 2014 to 2025. 

Authored by Christophe Jaffrelot of CERI-SciencesPo/CNRS and King’s College London, together with Yale Law School scholar Prannv Dhawan, the 25-page paper concludes that the apex court, despite retaining formal independence through the collegium system, has largely failed to defend the rule of law and has instead become complicit in India’s democratic backsliding.

The authors trace a decade-long erosion of judicial autonomy through a detailed examination of every Chief Justice of India who served in this period. They document how the Modi government, after an initial three-year “war of nerves” marked by deliberate delays in judicial appointments, punitive transfers, and unprecedented rejection of collegium recommendations, gradually brought the judiciary to heel. By 2017, with the retirement of the combative Chief Justice T.S. Thakur and the arrival of more compliant successors, the court’s tone shifted from resistance to accommodation.

The paper highlights repeated instances of executive overreach: up to 45 percent of High Court judgeships remained vacant for years, the judges who ruled against the Gujarat government in 2002 riot and fake-encounter cases (Justices Jayant Patel, K.M. Joseph, and Akil Kureshi among them) were "sidelined", and rejection or indefinite delay in appointments, especially of Muslim candidates. All this happened even as the collegium chose their names, an action the authors call arbitrary and illegal.

The study compares the contemporary Court’s performance to its conduct during the Emergency of 1975–77, stating that the present moment reflects “a return to the complacency of the dark hours of the Emergency”, referencing the Habeas Corpus ruling in which only Justice H.R. Khanna dissented. It argue that while the Emergency era saw overt coercion, today’s pressures operate through appointment manoeuvres, ideological alignment and self-censorship.

A special section is devoted to the 2019 Ayodhya-Babri Masjid judgment delivered by a five-judge bench headed by then Chief Justice Ranjan Gogoi. The authors characterise the unanimous verdict as one of the clearest examples of the court’s new complacency: while acknowledging that the 1992 demolition of the mosque was an “egregious violation of the rule of law” and that the surreptitious placement of idols in 1949 was illegal, the court handed the entire disputed site to the Hindu parties for a Ram temple and offered Muslims a five-acre alternative plot elsewhere. 

The authors argue that the judgment effectively rewarded majoritarian mobilisation and demolished the constitutional principle that no religious community can claim exclusive title on the basis of faith alone, marking a decisive shift toward majoritarian jurisprudence.

The study also scrutinises the period after November 2024 when Justice Bhushan R. Gavai became the senior-most judge presiding over several constitutionally significant benches. The authors point to a series of rulings that continued the pattern: the refusal to stay the implementation of the Citizenship Amendment Act rules, the dismissal of challenges to the Uniform Civil Code in Uttarakhand, the prolonged inaction on petitions seeking enforcement of guidelines against hate speech and bulldozer demolitions, and the upholding of restrictive bail conditions in UAPA and money-laundering cases involving opposition leaders and journalists. 

These decisions, the paper contends, have further entrenched the executive’s dominance over minority rights and civil liberties.

Ganesh puja: Modi with Chandrachud, Sept 2024

Although the Supreme Court struck down the government’s National Judicial Appointments Commission in 2015, the collegium system has since been hollowed out in practice, believe the authors. The court repeatedly declined to enforce its own deadlines or hold the government accountable, merely issuing advisory orders while thousands of cases piled up and fundamental rights petitions languished.

From 2017 onward, they say, under Chief Justices Khehar, Misra, Gogoi, and their successors, politically sensitive matters ranging from whistle-blower protection and Aadhaar privacy to the abrogation of Article 370, electoral bonds, and rising hate speech were either dismissed, deferred indefinitely, or decided in ways that aligned with the government’s position. 

The authors point to growing ideological convergence between sections of the judiciary and the ruling Bharatiya Janata Party, reinforced by decades of quiet penetration of the judicial system by the RSS ecosystem and the allure of post-retirement sinecures.

Particular attention is paid to Chief Justice D.Y. Chandrachud, the longest-serving CJI in the period under review. While acknowledging some liberal judgments and strong public speeches defending constitutional values, the paper criticises the stark inconsistency: the same court that spoke eloquently of individual liberty failed to urgently hear habeas corpus petitions from Kashmir, delayed transparency in electoral funding for years, and upheld the revocation of Article 370. 

This ambivalence, the authors argue, reveals deeper structural tensions and a judiciary increasingly unwilling to confront executive power.

Placing India alongside Poland, Hungary, and Turkey, the study describes the Indian case as especially puzzling because judicial capitulation occurred without formal constitutional capture; the collegium still exists, yet the court voluntarily surrendered much of its authority. 

The result, the authors warn, is the removal of one of the last effective checks on majoritarian authoritarian politics, accelerating India’s slide toward competitive authoritarianism.