Autocratic Legalism and Juridical Veto: Reflections on Politics and the Law in India
| Published date | 01 October 2024 |
| DOI | http://doi.org/10.1177/09646639241266241 |
| Author | Amit Prakash |
| Date | 01 October 2024 |
| Subject Matter | Special Issue: The Rule(s) of Law under HindutvaEdited by M. Sudhir Selvaraj, University of Bradford, UK and Raphael Susewind, London School of Economics, UKArticles |
Autocratic Legalism and
Juridical Veto: Reflections
on Politics and the Law in
India
Amit Prakash
Freie Universität Berlin, Germany
Jawaharlal Nehru University, India
Abstract
Much ink has been spilt on the errors and lapses of juridical pronouncements by the higher
judiciary in India. Such commentary is valuable for tracing changes in the politico-juridical
and social context, as well as, the impact of such errors and lapses on fundamental rights
and related laws. However, perhaps, more important are the cases where the judiciary
has not spoken, sometimes for years, despite having been petitioned by numerous affected
parties and other times under public-interest litigation. The impact of such ‘juridical pocket
veto’is that legal liminality is allowed to operate and thus, a situation of autocratic legalism is
produced wherein the action of the executive or legislature is seen as legal in its technicality
but in the absence of adequate judicial review, creates an autocratic outcome for the polity
at large, which in turn reinforces governmentalisation and undermines the liberal script.
Keywords
Autocratic legalism, juridical veto, politics and the law, India
If you’re saying something with a smile then there is no criminality, if you’re saying some-
thing offensive then definitely. You have to check and balance. (Thapliyal, 2022)
This oral observation of the Delhi High Court in Brinda Karat and Anr. v. State of
NCR of Delhi and Anr. (W.P.(CRL) 1624/2020) on 25 March 2022 aptly captures
Corresponding author:
Amit Prakash, Cluster of Excellence ‘Contestations of the Liberal Script’, Freie Universität Berlin, Berlin,Germany;
Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi 110 067, India.
Email: amit@jnu.ac.in
Article
Social & Legal Studies
2024, Vol. 33(5) 808–824
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639241266241
journals.sagepub.com/home/sls
some of the reasons why the judiciary is increasingly losing its legitimacy in India. The
cause for such rising dissatisfaction with the judiciary has nothing to do with the quality
of its legal reasoning or even the large gaps in its internal administration, both of which
have been legitimate foci of scholarly critique. Instead, what is new is the increasing
degree of satire or derision of the judiciary, rooted in its apparent unwillingness to
perform its assigned role of holding the executive accountable to Constitutional
norms and morality (Baxi, 2019). It appears that the higher judiciary is acquiring the
character of an executive or administrative judiciary –fundamentally different from
the one with wide powers of writ to enforce fundamental rights and uphold a finely-
tuned separation of powers. In its stead, a series of acts of commission and omission
seem to point to the judiciary performing the task of upholding executive action,
often against the well-established pre-eminence of fundamental rights. This paper
therefore turns its attention to underlining such patterns of judicial functioning in
India and its implications.
I will analyse the apparent collaboration between the judiciary and the executive and
the manner in which the judiciary becomes a ‘mute’player in the political landscape. My
analysis is supported by select cases before the Supreme Court to focus on three broad
threads: (a) an over-credulous judiciary with respect to the executive; (b) cases where
judiciary has demonstrated no dispatch in examining the substantive legal questions
that citizens have brought before it; and, (c) the differential addressing the same question
by the higher judiciary. Such analysis acquires salience in the context of balance of
powers envisaged in the Constitution of India wherein Article 32 provides for the citi-
zens’‘the right to move the Supreme Court [and the high courts] …for the enforcement
of the rights…’ through the ‘… power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
…, for the enforcement of any of the rights conferred by this Part’; which ‘…shall not be
suspended except as otherwise provided for by this Constitution’.
Before proceeding, however, a few caveats are in order. First, the paper does not
analyse the application of legal logic and reasoning in the judgements. Second, it does
not examine the appositeness of the decisions, orders and judgements. Third, the internal,
bureaucratic functioning of the judiciary is not a focus. Last, and most importantly, this is
not a critique of any particular court, judge, executive functionary or office; instead, it is a
commentary on the structural imperatives and processual shifts in recent years. My main
argument is that a pattern of expansion of juridical power and thereby autocratic legalism
embedded a de facto juridical veto in the legal procedure.
Juridical Veto and Myths and Delusions of Liberal Theory
The juridical veto such embedded reflects a well understood but ignored aspect of liber-
alism. The juridical architecture under the Constitution of India accords almost unbridled
powers to the higher judiciary for the sole purpose of protecting liberal rights embedded
in Part III of India’s Constitution from excesses of state power. However, recent experi-
ence underlines the prioritisation of processual aspects of electoral democracy, expressed
in both arguments propounded by the Executive before the court and in the legislative
enactment of the parliament. Such a split between the liberal and the democratic is the
Prakash 809
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