On January 25, European decision-makers engaged with Indian Supreme Court lawyers about the role of the Supreme Court of India in providing judicial safeguards and uphold constitutional rights. Among the experts briefing the decision-makers were Anand Grover, Prashant Bhushan and Shahrukh Alam, and the discussion was opened by Alviina Alametsä, the European Parliament’s Standing Rapporteur on India. The briefing was hosted by think tank The London Story, and took place in advance of Republic Day, when India celebrates its Constitution that promises a secular republic governed by fundamental rights. It warned that constitutional protection in India is undergoing a period of crisis, and emphasised a need for EU-India collaboration towards an independent and diverse judiciary.
MEP Alviina Alametsä, who recently visited India to meet with lawyers, journalists, government representatives and human rights defenders, said: “The celebrations of Republic Day are overshadowed by urgent human rights violations that I also witnessed when travelling in India.” Alametsä continued: “My wish for this Republic Day is that India will live up to the vision on which it was built, and strive to fully realise all the rights that are enshrined in its Constitution.”
In January 2023, former senior Supreme Court judges warned that branches of the executive and other oversight bodies had been “turned into extended arms of the central government” and had been “ignoring the Constitution of India”. In this context, the briefing considered the role of the judiciary in overseeing the actions of the executive. However, the briefing experts identified several issues that could challenge the integrity of the Supreme Court and its ability to serve as the third pillar of democracy. Their concerns echo those of others regarding the ability of the Supreme Court to uphold India’s secular and progressive constitution. In 2018, four senior Supreme Court judges publicly warned that “things are not in order” with “the administration of the Supreme Court”.
● Anand Grover, Senior Advocate in the Supreme Court and former UN Special Rapporteur on the Right to Health, noted: “Today, we live in an era of what people have called an ‘undeclared emergency’. In the emergency era in 1975, the judiciary succumbed. But the situation is more egregious today.”
● Prashant Bhushan, public interest lawyer in the Supreme Court, agreed: “India is facing the most serious threat to its republic since its founding. The situation today is even worse than it was during the emergency of 1975, when fundamental rights were suspended. What we are seeing today is a systematic assault on all fundamental rights.”
● Shahrukh Alam, independent practitioner at the Supreme Court expressed concern that “the Supreme Court is increasingly adjudicating cases through the prism of national security and national interest.” But because of a lack of diversity in caste, gender and religion among judges, she noted, marginalised populations such as religious minorities are constructed as outsiders to the national interest.
India has been praised for its judicial activism, as the Supreme Court is empowered to start suo moto cases on suspected injustices without receiving a formal petition. The Supreme Court lawyers at the briefing noted, however, that India’s Supreme Court is not using these tools adequately to uphold the constitutional rights that are under threat. Research by Article14 from 2022 notes that for 1.5 years, there was no progress on six cases of national importance, and 53 cases that required a wider review by a constitution bench were kept pending. While the Supreme Court has failed to take up fundamental rights cases, Prashant Bhushan lamented that it has been proactive in others that, he claims, “are exactly the opposite of what they should have taken up.”
Anand Grover highlighted that the Indian judiciary faces many of the same problems as judiciaries abroad, such as that in the United States. Therefore, he recommended the EU and India strengthen judicial exchanges, in which judges support each other in strengthening the protection of fundamental rights. This would require urgent action, the briefing noted. Prashant Bhushan lamented: “The government has not taken steps to strengthen the lawyer community or to strengthen the judiciary. The current government would be very happy to just let the judiciary wither away.”
The EU-India Strategic Partnership emphasises that the two partners are both “’unions of diversity’, sharing values of democracy, rule of law and human rights”. Therefore, the briefing emphasised that the EU and India must actively work to strengthen the judicial institutions that protect these shared values.
The briefing was hosted by The London Story, a think tank led by Indian diaspora that seeks to ensure human rights and democratic values are at the core of the relationship between the European Union and India.
Watch the full recording of the briefing:
Watch MEP Alviina Alametsä’s full statement:
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