The rule of law in India has been imperiled ever since the Bharatiya Janata Party (BJP) took power in 2014. Some threats, such as vigilantism by Hindu extremists, have been largely ignored by the state. Others, like the intimidation of journalists, have often featured Internet trolls encouraged by BJP leaders. The most troubling instances have come directly from the government: when it has used investigative agencies to prosecute political opponents—which, in the case of the Indian state of Bihar, enabled the BJP to join the ruling coalition—or when it has elevated people accused of violent crimes to the top rungs of leadership, such as the Uttar Pradesh chief minister, Yogi Adityanath. Yet recent events in the Supreme Court suggest something even graver is afoot—that the basic structure of India’s democracy may be shakier than it had seemed. [...]
More than once has the Supreme Court been called upon to preserve liberal democracy in India. In 1973, the court ruled against attempts by the government of Prime Minister Indira Gandhi to circumvent judicial authority and curtail the basic rights of citizens, such as the right to property. This was part of what one of her ministers called an effort to remake “the entire socio-economic fabric of our country [through] greater and greater State intervention.” The Gandhi government responded to its legal defeat by installing a sympathizer as chief justice, provoking other judges to resign. Two years later, when the government argued that the rights of citizens to life and liberty could be suspended, the Supreme Court agreed. Months of summary detentions, forced sterilizations, and press censorship followed, during the 1975–1977 period known as “the Emergency.” It’s unclear how Indian democracy would have survived if Gandhi had not called elections, anticipating victory—and then lost.
The behavior of the current chief justice has called into question once again the independence and credibility of the Supreme Court. In April, when opposition parties sought to impeach Misra—the first such attempt in Indian history—they listed five allegations against him, including involvement in a pay-to-play scheme, the falsification of official documents, and behind-the-scenes manipulation of sensitive cases. The outcomes of these cases have favored either Misra personally or the BJP.
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