Mirror, Mirror, On The Wall : The Arithmetic of Power vs. The Rule of Law

The Electoral Bonds issue saw it struck down unanimously in February 2024 by a Constitution Bench headed by CJI D.Y. Chandrachud. The Court held the scheme manifestly arbitrary, unconstitutional, and a violator of the voters’ fundamental right to information, exposing it as an opaque channel for corporate kickbacks. The Constitution Bench struck down the Electoral Bonds Scheme by declaring it manifestly arbitrary under Article 14 and a violation of the voters’ right to information under Article 19(1)(a). The legal argument concluded that concealing the identity of corporate donors from citizens, while the ruling executive retains access to data via state-owned banks, creates a stark informational asymmetry that undermines free and fair elections. In January 2024, the Supreme Court quashed the premature release of 11 convicts sentenced for gang-rape and murder during the 2002 riots. The Court held that the Gujarat government had committed “usurpation of power” and acted in bad faith, severely censuring the state’s collusion. It is widely believed that while central agencies like the Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) are unleashed almost exclusively against political opponents, despite a conviction rate under 1%, the Court has repeatedly cautioned against keeping accused persons in indefinite pre-trial detention under draconian statutes like the PMLA, holding that bail remains the rule and jail the exception (even if that rule is not being applied to a few select individuals). That is yet another record.

The 2023 legislation that unilaterally removed the Chief Justice of India from the selection panel for Election Commissioners directly bypassed the spirit of the Supreme Court’s Anoop Baranwal ruling, confirming the executive’s appetite for an executive-controlled election watchdog and eroding the checks and balances ensuring fairness. One more record.

Pankaj Bansal v. Union of India (2023) & Vijay Madanlal Choudhary (2022) : The Court interpreted the draconian provisions of the Prevention of Money Laundering Act (PMLA). While upholding the statute generally, the Court built safeguards into the legal framework, ruling that the Enforcement Directorate (ED) must provide written grounds of arrest to ensure compliance with Article 22(1) and that prolonged pre-trial incarceration without trial violates Article 21, ensuring that “bail remains the rule”.  This rule sometimes apparently does not apply, but that is apparently a different matter.

Anoop Baranwal v. Union of India (2023) : The Court ruled that an election watchdog must be insulated from executive control. The legal argument dictated that leaving the appointment of Election Commissioners solely to the executive branch violates the mandate for free and fair elections under Article 324, requiring an independent selection committee to preserve the democratic referee.

The ultimate legal barrier to pure majoritarianism is the Basic Structure Doctrine. The Court established that an electoral majority does not equal absolute sovereignty. A political mandate cannot be used to alter or destroy the core identity of the Constitution, such as secularism, democracy, judicial review, and federalism, all of which remain beyond the reach of parliamentary numbers.

Constitutional morality, a term famously integrated into Indian jurisprudence by Dr. B.R. Ambedkar, is the institutional soul that prevents a democratic republic from degenerating into a majoritarian tyranny. In his address to the Constituent Assembly, Ambedkar observed that constitutional morality is not a natural sentiment; it must be cultivated. He defined it not merely as adherence to the text of the law, but as a profound commitment to the values underlying the constitutional framework, chief among them being the rejection of arbitrary power and the preservation of pluralism.

The operational framework of constitutional morality finds its text-based home in Part IV of the Indian Constitution : The Directive Principles of State Policy (DPSP). While Article 37 explicitly states that the DPSPs are non-justiciable (cannot be directly enforced by courts of law), it simultaneously declares that they are “fundamental in the governance of the country” and mandates that it shall be the duty of the State to apply these principles in making laws.

Article 38 (The Realization of a Just Social Order) obligates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life”. When the state executive engages in extra-judicial demolitions or allows targeted communal polarization, it violates the core directive of Article 38. Constitutional morality dictates that “welfare” cannot be subverted into majoritarian convenience; the state must preserve a just social order for all citizens, irrespective of their demographic weight.

Article 39A (Equal Justice and Free Legal Aid) mandates that the state ensure the legal system operates on a basis of equal opportunity, ensuring that justice is not denied to any citizen. The subversion of due process, whether through weaponized enforcement agencies or summary “bulldozer” actions, directly contradicts Article 39A. Constitutional morality requires that the state provide an institutional equalizer, ensuring that the poor and minorities are not crushed by the machinery of the state.

Article 46 (Protection of Vulnerable Sections) commands the State to protect weaker sections of the people from “social injustice and all forms of exploitation”. A governance model that relies on exclusionary legislation (such as discriminatory citizenship criteria or asymmetric endowment bills) directly flouts this directive. Constitutional morality translates Article 46 from a passive aspiration into an active obligation of restraint, barring the state from weaponizing statutory law against its own minority populations.

Historically, the Supreme Court has bridged the gap between fundamental rights (Part III) and the directives (Part IV) by using constitutional morality as a foundational bridge. In cases like Minerva Mills v. Union of India (1980), the Court held that the Indian Constitution is founded on the bedrock of the balance between Part III and Part IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution.

Therefore, governing according to constitutional morality requires the state executive to actively pursue the socio-economic goals strictly through the humane, non-arbitrary, and egalitarian methods mandated. A majoritarian mandate does not exempt the executive from this duty; instead, it amplifies the obligation to govern with institutional restraint.

While the internal institutional friction within India remains an undeniable domestic reality, extensively documented by its own judiciary, the methodology and positioning of Western democracy watchdogs are frequently subject to severe geopolitical critique. A structural analysis reveals a distinct pattern of selective moral pontification and double standards, wherein Western indices evaluate Asian and Global South democracies through rigid, hyper-specific lenses while systematically ignoring or minimizing catastrophic human rights crises elsewhere.

Western watchdogs design their frameworks to evaluate localized, internal administrative procedures while largely ignoring the catastrophic democratic costs of foreign invasions, proxy wars, and occupations engineered by Western powers.

The systematic destruction of state infrastructure in Iraq, the protracted humanitarian devastation in Yemen, and the historic human rights emergencies in Palestine represent foundational violations of international law, the right to life, and the right to self-determination. Despite hundreds of thousands of civilian casualties and the complete collapse of institutional safeguards in these regions, Western watchdogs rarely downgrade the democratic or human rights scores of the Western states directly responsible for these interventions. Similarly, authoritarian client states tightly aligned with Western security and energy architectures are routinely spared the aggressive, highly publicized public campaigns aimed at non-aligned Asian nations.

The structural criteria deployed by bodies like Freedom House or V-Dem frequently reflect the foreign policy alignments of their primary donor bases, which are largely anchored in Western capitals. Their indices display a notable blind spot regarding systemic violations occurring within Western nations themselves. Mass surveillance architectures, the aggressive policing and criminalization of peaceful anti-war protests, systemic racial inequities within judicial systems, and the arbitrary freeze of state assets belonging to foreign nations are rarely categorized as signs of “democratic decay” or “autocratization” when they happen in the West. This asymmetry exposes a fundamental contradiction : demanding absolute allegiance to idealistic values from Asian nations, while the arbiters of those indices routinely compromise those exact principles in their own domestic and foreign policies.

The relationship between international treaty obligations and domestic law in India is governed by a dualist model, rather than a monist one. In a dualist framework, international treaties signed and ratified by the executive do not automatically become part of domestic municipal law. They require legislative incorporation by Parliament to become enforceable in domestic courts.  An inclusive regime looks at matters from one perspective. An exclusivist “us and them” regime adopts a different view, as we have seen.

The constitutional architecture explicitly balances state sovereignty with international cooperation through three primary provisions.

Article 51(c) : Located within the non-justiciable Directive Principles of State Policy (DPSP), this article mandates that the State shall endeavor to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”.

Article 253 : This article grants Parliament the exclusive power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement, or convention with any other country or international body. This overrides the standard federal division of powers, allowing Parliament to legislate on State List subjects if necessary to fulfill a treaty obligation.

Seventh Schedule (Union List) : Entries 12 (Foreign Affairs), 13 (Participation in international conferences and implementing decisions), and 14 (Entering into treaties and agreements with foreign countries) explicitly vest treaty-making and implementation powers solely within the Union domain.

Despite the formal dualist structure, the Supreme Court has dynamically evolved its jurisprudence to practice a form of judicial incorporation. In the landmark case of Gramophone Co. of India Ltd. via Birendra Bahadur Pandey (1984), the Court ruled that municipal courts should respect international law rules unless they conflict with an Act of Parliament.

The definitive shift occurred in Visakha v. State of Rajasthan (1997), where the Supreme Court relied on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to formulate guidelines against sexual harassment in the workplace. The Court held that international conventions and norms are significant for the purpose of interpretation of fundamental rights under Part III of the Constitution, and can be read into domestic law provided there is no void or inconsistency with existing municipal statutes.

Following a series of judicial checks on executive power, including the Golaknath case (limiting parliamentary power to amend fundamental rights) and the Bank Nationalization case, the executive sought a “committed judiciary” that aligned with its socialist, majoritarian agenda.

On April 24, 1973, a 13-judge bench delivered the Kesavananda Bharati verdict, establishing the Basic Structure Doctrine by a narrow 7-6 majority. The very next day, on April 25, 1973, the government broke the established convention of appointing the senior-most sitting judge as the next CJI upon the retirement of CJI S.M. Sikri. The executive bypassed three senior-most judges : Justice J.M. Shelat, Justice K.S. Hegde, and Justice A.N. Grover, all of whom voted with the majority to limit parliamentary power. The executive elevated Justice A.N. Ray, who had voted in favour of absolute parliamentary supremacy. In protest of this institutional subversion, Justices Shelat, Hegde, and Grover resigned from the Supreme Court. This marked the first direct, structural intervention by the political executive to reshape the apex court’s leadership.

In the infamous case of ADM Jabalpur v. Shivakant Shukla (1976) (The Habeas Corpus Case), a 5-judge bench was asked to decide whether citizens could approach High Courts for habeas corpus relief when fundamental rights were suspended. In a 4-1 decision, the Court capitulated to the executive, holding that even the right to life stood suspended. Justice H.R. Khanna delivered the sole, historic dissenting opinion, asserting that Article 21 cannot be suspended and that the state has no power to deprive a person of life or liberty without the authority of law. In January 1977, as CJI A.N. Ray neared retirement, the Indira Gandhi administration punished Justice Khanna for his dissent. Despite being the senior-most judge, he was bypassed. The executive elevated Justice M.H. Beg to the position of CJI. Following the established precedent of institutional integrity set in 1973, Justice H.R. Khanna resigned immediately. His supersession remains a stark historical warning of how independent judicial stances can result in direct career retribution from the executive.  Beg’s opportunistic acceptance disillusioned many of his erstwhile admirers.

2014 to the present has seen a sub-silentio system of selective appointments. Following the 2015 striking down of the National Judicial Appointments Commission (NJAC) Act, the Supreme Court’s Collegium system regained exclusive authority over judicial appointments and transfers. In response, the executive transitioned from explicit, public supersession to a highly effective system of administrative attrition and selective delays. Instead of issuing outright rejections or formally bypassing senior judges at the final CJI stage, the modern executive utilizes a “pocket veto”. The Ministry of Law and Justice sits indefinitely on specific Collegium recommendations for elevation or transfer, while fast-tracking others. A few case studies are illustrative. When the Collegium recommended the simultaneous elevation of Uttarakhand High Court Chief Justice K.M. Joseph and senior advocate Indu Malhotra to the Supreme Court, the government split the recommendation, approving Indu Malhotra while returning Justice Joseph’s name for reconsideration, citing regional representation. Legal analysts argued the delay was retribution for Justice Joseph’s 2016 judgment quashing the imposition of President’s Rule in Uttarakhand. He was eventually elevated, but with reduced seniority, altering his trajectory within the court.

High-profile independent judges have been systematically transferred to less prominent High Courts or had their elevations to Chief Justice positions delayed. Notable examples include the handling of recommendations for Justice Akil Kureshi, who was repeatedly passed over for major High Courts despite clear Collegium recommendations, and Justice S. Murlidhar, whose sudden midnight transfer from the Delhi High Court occurred immediately after he directed the police to register FIRs against politicians during civil unrest.

Draft Article 230 (Debated in 1949)	Enacted Article 253 (Constitution of India, 1950)
“Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”	“Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.“

The text notably remained identical in its final transition, but the debate surrounding its inclusion provides the definitive look into the Constituent Assembly’s intent regarding India’s federal structure. It was debated heavily on 13 June 1949 in the Constituent Assembly. The discussions reveal a highly deliberate structural choice by the framers to prioritize central executive and legislative authority over provincial autonomy when handling international affairs.

The primary intent behind keeping this article absolute was to prevent provincial governments from blocking international commitments made by the Union. The framers were highly conscious of the constitutional deadlock that had occurred in Canada under the British North America Act. In Canada, the Privy Council had ruled that the federal government could not implement international labour conventions if the subject fell within provincial jurisdiction. It does not and cannot translate to power to legislate negating treaty obligations and ratified international covenants and conventions.

For decades following independence, provisions like Article 253 (Treaty Implementation) and Article 356 (President’s Rule) were interpreted as explicit text-based proof that the Indian Constitution was heavily tilted toward a unitary state. Legal scholars routinely argued that the Centre’s ability to override the State List under Article 253 meant that states possessed no sovereign legislative spaces.

The landmark 9-judge bench decision in S.R. Bommai v. Union of India re-evaluated this dynamic, fundamentally shifting how the balance between Central emergency/overriding powers and state autonomy is understood. The judgment formally declared that Federalism is an essential feature and part of the Basic Structure of the Indian Constitution. Justices P.B. Sawant and K. Ramaswamy noted that within their assigned spheres, the states are as sovereign as the Centre elevating federalism to a non-negotiable component of the Basic Structure, Bommai structurally altered how Article 253 must be applied. While the text of Article 253 remains intact, any central legislation passed under the guise of an international treaty must satisfy the test of organic harmony with the federal structure.

Political infallibility is illusion. The mirror shows us our own faces, the ones we have grown up seeing from childhood, and to us the most familiar and perhaps beyond reproach, so the premise peddled by Ram Madhav is that the Opposition has “no answer” to a quarter-century of power. But the Opposition does not need an answer because the Constitution already provides it.

When the Supreme Court struck down electoral bonds, voided the Bilkis Bano remissions, and outlawed bulldozer justice, it was not playing Opposition politics or indulging in shenanigans : it was defending the Republic from executive excess. To boast of 25 years of political survival while leaving independent institutions fractured, civil liberties compromised, and minority communities alienated is not an achievement. It is an indictment.

Winning elections proves popularity; it does not prove legality, justice, or constitutional fidelity. The history of liberal democracies is replete with populist regimes that dismantled institutions from within using the sheer blunt force of electoral mandates.

Majorities come and go, but the hollow glory of an electoral empire built on the rubble of constitutional morality will trouble anyone who reads the fine print of history. As the opening verse of Dr. Mohammed Iqbal’s poem “Funoon-e-Latifa”, part of his 1936 Urdu poetry collection Zarb-e-Kaleem, asks :

Ae ahl-e nazar, zauq-e-nazar khoob hai laikin, Jo shai ki haqeeqat ko na samjhe woh nazar kya ?!

Jai Hind