“A judiciary of undisputed integrity is the bedrock of democracy and the rule of law. Even when all other protections fail, the judiciary provides a bulwark to the public against any encroachments on rights and freedoms under the law. These observations apply both domestically—in the context of each nation-state—and globally, for the global judiciary is seen as one great bastion of the rule of law throughout the world. Ensuring the integrity of the global judiciary is thus a task to which much energy, skill and experience must be devoted.”
—Justice Christopher Weeramantry vice-president, International Court of Justice, 1997-2000; chairperson, Judicial Integrity Group
Thrice in as many days, the man who holds the second highest constitutional post in the country, Vice-President Jagdeep Dhankhar, has attacked the judiciary, mainly over what he called “judicial overreach” and insisted that parliament was the ultimate authority over any issue to do with the Constitution. His unseemly tirade followed similar attacks by other BJP leaders led by serial offender Nishikant Dubey. Despite the fact that the BJP President JP Nadda, was quick to distance the party from remarks against the judiciary made by partymen like Dubey, the damage was done.
In fact, a section of BJP leaders had started criticizing the Supreme Court following its judgment in the Tamil Nadu case in which it ruled that the governor’s decision to withhold bills indefinitely was “arbitrary” and set aside the governor’s actions using its special powers under Article 142 of the Constitution. The order by the bench of Justices JB Pardiwala and R Mahadevan also said that only courts have the prerogative to provide recommendations regarding the constitutionality of a bill and the executive is supposed to exercise restraint in such matters. It underlined that it would be prudent for the president to refer bills with constitutional questions to the Supreme Court. The landmark Supreme Court judgment set deadlines for the president and state governors to clear bills passed by state assemblies.
Dhankhar immediately objected and complained that Article 142 “has become a nuclear missile against democratic forces, available to the judiciary 24×7”.
Legal experts have expressed alarm at this systematic effort to delegitimize the judiciary, noting that such coordinated attacks on the court represent a dangerous precedent for democratic institutions. Senior lawyer Abhishek Manu Singhvi, who frequently argues in the Supreme Court, said: “There was no need for Dhankhar, as the holder of the second-highest constitutional post, to say what he did. The president of India does not comment on such things, and on this issue, there is no difference between the president and the vice-president. Previous incumbents of the office have not commented on such issues and there is no reason to start this process.” He also supported the apex court’s exercise of powers under Article 142 for “complete justice”.
Former Supreme Court justice Ajay Rastogi also dismissed talk of “judicial overreach”, pointing out that parliament had the power to amend provisions in the event of disagreement with the Court. Supreme Court Bar Association President Kapil Sibal, hit back at the vice-president saying: “The Law: neither parliament nor the executive is supreme. The Constitution is supreme.”
The confrontation has clearly undermined the judiciary and poses an unwanted headache for the incoming chief justice. Last week, while hearing a plea to direct the central government to deploy paramilitary forces in Bengal to quell anti-Waqf Bill violence, Justice BR Gavai, who will shortly take over as the next chief justice, remarked: “You want us to issue Writ of Mandamus to the President… As it is, we are facing allegations of encroaching into Executive…”
In fact, the battle escalated even further when a senior advocate Subhash Theekkadan, sought consent from the attorney general for initiating criminal contempt proceedings against the vice-president, claiming that his comments amounted to a direct attack on the authority and dignity of the Supreme Court. It is inconceivable that the vice-president, known for his authoritative handling of the Rajya Sabha where he is chairperson, is speaking for himself. There seems to be a sudden increase on attacks on the judiciary by members of the ruling party, which does not augur well for the future health of Indian democracy.
Kiren Rijiju, minister of parliamentary affairs, has also been critical of the top court several times. During his eventful tenure of almost two years as law minister, Rijiju made several digs at top judges and the Indian judiciary. That stand-off is now out in the open, led by the vice-president, no less. There is no judiciary that is perfect and free from systematic flaws, but it is still the one institution that is the last refuge of the common man in the eternal quest for justice.
Such confrontations between the two key pillars of a democracy are not new, but it sends a warning about the consequences that such a battle could have when a new world order is emerging, thanks to the reckless abandon with which US President Donald Trump has started his second term, upending the global structure that has been in place for the last 70 years.
What makes it more intriguing is that this comes at a time when the judiciary across many parts of the world is facing attacks from political leaders. The latest issue of Foreign Policy has this to say: “US President Donald Trump is challenging judicial constraints on executive power, even at the risk of a constitutional crisis. This may be new in the United States, but it follows a pattern seen in countries such as Brazil, Israel, Hungary, and Turkey.
Why are so many democratically elected leaders defying the courts? How do the judiciary and civil society in other countries respond?” Much of this challenge in America is to do with immigrants who are lawfully in the US being deported without due process, but there are others. When the Associated Press won a First Amendment case challenging their expulsion from the White House press pool, for example, the administration simply eliminated the pool position rather than comply with the ruling.
Trump has said he won’t challenge the authority of the Supreme Court, something that would set off a far-reaching constitutional crisis. But so much of his governing agenda is eliciting judicial challenges that the lower courts will be repeatedly called on to define the limits of executive power. These fights are only just beginning.
In fact, a recent report by the International Commission of Jurists (ICJ) titled, “Judicial Independence in India: Tipping the Scale”, says that over the past decade (2014-2024), the Indian judiciary has experienced “retrogressive developments in respect of judicial independence”, and that though India’s judiciary remains constitutionally independent, its autonomy is increasingly being undermined by “significant scope for external, including executive influence”.
ICJ is a global non-profit organisation of eminent judges and lawyers, and is dedicated to promoting and protecting human rights through the rule of law, according to the organisation’s website. It’s headquartered in Geneva, Switzerland and works across five continents. Its report is wide ranging and disturbing. As it says: “In recent decades, especially with the rise of populism and its anti-elitist rhetoric, democratically elected governments have increasingly sought to curtail the power and independence of the judiciary through various strategies. Beyond legal and institutional attempts to weaken the judiciary, verbal attacks against judges and courts have become more common. Numerous studies show that such government attacks violate the rule of law, trigger institutional crises, undermine judicial independence, and influence judicial behaviour. However, despite the prevalence of these inter-branch conflicts, relatively few studies have examined the conditions under which rulers are more likely to erode judicial independence.”
Some scholars say that governments curtail judicial independence when executive power is highly centralized. In 2023, the government of Benjamin Netanyahu introduced so-called “judicial reforms” that would give politicians the power to appoint judges and constrain judges’ ability to strike down laws. The proposals led to large-scale protests throughout 2023 in Israel, but the conflict in Gaza put the debate temporarily on hold.
In September 2024, Justice Minister of Israel Yariv Levin restarted the reform push when he tried to convince the judicial appointments committee, which he co-chairs, to abandon its tradition that the Supreme Court president be the senior serving judge. Levin is pushing for a different candidate—one less critical of the “reforms”—to fill this post, which has now been vacant for more than a year.
Meanwhile, in Mexico on September 15, 2024, the outgoing president, Andrés Manuel López Obrador, signed into law judicial reforms, which, though different from those of the Netanyahu government, are potentially just as risky for the integrity of the judiciary. The measures reduce the number of judges in the Mexican Supreme Court and increase the number of judges needed to declare laws unconstitutional. They also purge thousands of judges from all levels of the judiciary and change judicial appointment to a popular election process, with few requirements related to expertise or professionalism. The new statute creates a judicial administration agency and judicial discipline tribunal, both of which could be used to intimidate and even persecute judges.
Democracies are built on a system of checks and balances that is meant to prevent any one branch from usurping power.
Courts and judges play a key role in upholding the rule of law and keeping executives accountable. They are also the one institution citizens can use to protect their rights and thus critical for protection of minority rights. While the rules governing judiciaries are often complex and arcane, changing them can have dramatic effects on the independence of the courts and their ability to hold other branches of government accountable. Reforms might be warranted where judges are self-serving or out of touch with public preferences. Too often, though, these changes are nothing more than attacks by the executive on the independence of the courts.
A recent paper that analysed data from 98 countries concluded that attacks on the judiciary are on the rise, as courts decide more and more critical political disputes, the outcomes of which are often at odds with the preferences of elected executives. Where courts threaten the ability of autocrats to consolidate power, undermine the separation of powers, and pursue their political enemies, they risk becoming a target. Aspiring autocrats can also create altogether new courts or judicial hierarchies to subvert the independence of existing institutions.
This was one of the many strategies used by Victor Orbán in Hungary in 2018, when he created a separate administrative court system that allowed the executive branch to control the selection of judges. Mexico’s recent reforms mirror this strategy as well. The judicial process can be weakened by limiting the power of legislative and independent oversight agencies, such as prosecutors, ombudsman, and comptroller generals. The Trump administration used this tactic when it fired a number of inspectors general in different government departments.
For a healthy democracy, all three pillars of governance must function independently within their constitutional domains. When one branch seeks to dominate or undermine the others, the delicate balance that sustains democratic governance is threatened. The ongoing attacks on judicial independence in India represent not just a challenge to the courts, but a fundamental test of India’s commitment to constitutional democracy itself.
Dr BR Ambedkar strongly advocated for the separation of powers in the Indian Constitution, emphasizing the need for complete separation of the legislative, executive and judicial branches to prevent tyranny and ensure a checks and balances system. He believed that the judiciary should be completely independent of the executive and legislature, and the executive should not interfere with the legislature. However, the current vice-president, while harping endlessly on the Constitution, seems to disagree.
—The writer is former Senior Managing Editor, India Legal magazine
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