On January 26, India celebrates Republic Day, honoring its Constitution that promises a secular democratic republic guaranteeing fundamental rights to all its citizens. However, 74 years after entering into force, these fundamental rights are seriously threatened by the far-right government. There is evidence of a systematic erosion of Right to Freedom of Religion, Right to Freedom of Speech, and Right to Life and Liberty, which signal a period of crisis for India’s constitutional protection. Traditionally, the Supreme Court of India has stepped in to protect fundamental rights and constitutional values at several occasions.
Over the last years, senior lawyers have voiced concerns about the ability of the Supreme Court to uphold India’s secular and progressive constitution. Anand Grover, for instance, emphasized that “when you have a strong government with a particular political ideology, the judiciary becomes vulnerable” and that the “freedom of speech and plurality in Indian society is being eroded”.
On last year’s Republic Day, senior lawyers noted serious reported shortcomings in the Supreme Court’s handling of fundamental rights cases. Indeed, research by Article-14 from 2022 noted that for 1.5 years, there had been no progress on six cases of national importance, and 53 cases that required a wider review by a constitution bench had been kept pending. Since then, there have been developments in a few of these cases, thereby giving the petitioners a Right to a Fair Trial under Article 21 of the Indian Constitution and Article 10 of the Universal Declaration of Human Rights (UDHR).
For example, on the Jammu and Kashmir situation, the Supreme Court had left petitions on the unilateral abrogation of Article 370 of the Constitution pending since 2019, which stripped Jammu and Kashmir of its semi-autonomous status. The Supreme Court’s final ruling on December 11 2023 upheld the abrogation and ordered Jammu and Kashmir to hold local elections by September 30, 2024.
However, other cases arguably only constitute modest progress. For example, 2023 marked one year since the Supreme Court delivered a split verdict on the hijab ban imposed on Muslim Students in government educational institutions. In December 2021, the Karnataka government had imposed a ban on the hijab for Muslim students in government educational institutions. Muslim students filed several petitions at the Supreme Court challenging the Karnataka order, claiming that the ban violated their fundamental Right to Religious Expression, their Right to Freedom of Expression, and privacy. In December 2023, while Minister Siddaramaiah hinted at a potential withdrawal of the order itself, the status remains pending.
While some of the cases of national importance have therefore been heard, several others remain pending. An analysis of eight politically sensitive cases furthermore shows they were moved to a single judge of the Supreme Court over the past four months, even though the rules of assignment say they should remain with the senior judge or before a judge hearing a similar case. This raises questions about the independence of the judiciary, which is crucial for ensuring a right to a fair trial.
As India grapples with a decline in democracy and threats to Fundamental Rights, there are ongoing concerns that the Indian judiciary is losing the independence required to uphold the fundamental rights the Constitution guarantees. While a mixed progress by the Supreme Court on fundamental rights cases indicates that it is actively trying to address these challenges, it remains unclear how far the assault on constitutional rights will the judiciary be able to defend against.
To learn more, watch our interview with senior lawyers and human rights defenders on Republic Day 2024.