As the Sangh Attacks Constitutional Order, Will the Supreme Court Steady the Ship?

On April 8, 2025, a division bench of Justices J.B. Pardiwala and R. Mahadevan unanimously held that the Tamil Nadu governor R.N. Ravi’s withholding of 10 state legislative bills was “illegal” and “erroneous”. In doing so, the bench clarified the powers of the governor under Article 200 of the constitution. The bench also used its discretionary powers under Article 142 to hold that the bills which were pending assent and reserved for the president were deemed to be assented.

Critically, to break the constitutional impasse that has bogged several states ruled by the opposition (Tamil Nadu, Punjab, Kerala, Karnataka), the bench also laid down timelines within which the governor and the president are to communicate their decisions on bills placed before them. Additionally, it expanded the scope of judicial review for a governor’s actions, enabling state governments to approach courts and seek a writ of mandamus if these timelines were not followed. A writ of mandamus empowers a competent court to direct a government official to discharge an official duty.

Within eight days of this on April 16-17, the Supreme Court made its views on the contentious amended Waqf law of 2025, clear. A bench consisting of none less than Chief Justice of India (CJI) Sanjeev Khanna, and Justices Sanjay Khanna and K.V. Viswanathan posed a sharp question to the Solicitor General (SG) of India, “Are you willing to allow Muslims on Hindu endowment boards?”.

The bench refused to relent when the SG issued dire warnings of the consequences and fallouts of their actions. The court remained firm, gave the Union government some time to detail its claims of large scale Waqf land abuse, until the next hearing (scheduled for the week of May 5) but stayed operations of the most egregious sections of the new law.

Soon after, senior functionaries of the ruling party heaped direct and indirect abuse on the Indian higher judiciary. Were these the “consequences” that the SG was direly “warning” the SC of? 

Abuse came from one, a Bihar Member of Parliament (MP), Nishikant Dubey, and an open challenge came from another, the present Vice-President of India and Chairperson of the Rajya Sabha, Jagdeep Dhankhar. Both, using different metaphors, one that of a clever lawyer, the other of a hit-man, have essentially questioned the supremacy of the Supreme Court of India in interpreting law and its consequences for the people of India, the fundamental rights of every citizen. While the BJP through its president J.P. Nadda, ‘distanced itself from Dubey’s statement, there has only been silence on Dhankar’s rather brazen verbal assault, a silence that is speaking in itself.

Also read: Dhankhar’s Disgrace: When the Vice-President Becomes a Partisan Attack Dog, Democracy Bleeds

Dhankhar himself a former governor and now the vice-president – has questioned the basic structure doctrine and the SC’s interpretation of Article 200 and application of Article 142 in the Governor’s case. While he has been at it for some time, Dhankhar has intensified the frontal attack on the independence of the Indian judiciary in the past week. Dubey, who spoke two days after the SC hearings on the Waqf law on April 19, in crude parlance has, accused the highest court in the land and the Chief Justice of India of fomenting wars, religious wars in the country. He has not stopped his tirade here but also hit out at a former chief election commissioner, S.Y. Quraishi on grounds of his religious identity. Both have been ready pugilists for this government, currently into its third term. Dubey and Dhankar have in the past, too, hogged headlines for their loud and aggressive pronouncements, many of them offensive. Dhankar’s conduct as Chair of the Upper House of parliament has also been openly partisan. That both Indian electronic and even print media has remained largely complicit and unquestioning of such constitutional overreach by the executive has only assisted the visible volubility of such spokespersons of the current political establishment.

The Sangh Parivar, the ideological fountainhead of this regime has since the 1920s been distinctly and clearly opposed to the creation of the Indian constitutional order and its mandate. Famed for its non-participation in the Indian freedom struggle and its contempt for the Indian tricolour (its cult worship of the bhagwa jhanda represents its commitment to the monolith, a ‘upper’ caste privileged theocracy), the wider Sangh Parivar are historically known to have collaborated with the British.

For them and their heirs who sit in government today, India that is Bharat is not a vibrant, diverse society – of varied castes, faiths, tribes, gender, ethnicity and class – that has collectively striven to constitute itself into a composite national identity with the thoroughly debated constitutional order as its ideal and mandate.

For them the return, through devious and capital-infused manipulation, of an order that may have the pretences of elections and democracy but where the will of a minor privileged majority rides roughshod over the many is useful. Hence the collective and shrill abuse of the political opposition from the ruling party and its spokespersons, the takeover of large sections of the media, the abuse and violations of all parliamentary procedure.

No wonder then that India has for the past five years at least, been labelled as an example of the global democratic recession and an ‘electoral autocracy.’ Elections and votes, fairly obtained or unfairly rigged, have been used to justify high-handed acts even as draconian laws have been amended or used to terrorise detractors or stifle dissent. The constitutional court, in such a situation, is – or should be – the Indian people’s last resort. While in some or several cases, it has chipped away at some seminal damage, in many others, judicial review has been deterred, deferred or delayed. 

This is why different constitutional courts taking the views that they did is a sign of hope. The winds of change could be seen last November too when for the first time – curbing malafide and discriminatory (to India’s religious minorities) bulldozer action – the Supreme Court had issued detailed strictures and guidelines. As a follow-up, the court has this month penalised administrators for defaulting in not following judicial directives.

But, while for the many this signalled hope and some relief, for others – especially those entrenched and heady with power – the Sangh Parivar and its elected representatives, several of whom occupy constitutional positions, swords have been unsheathed. 

If the court does not bend to the Union government’s will and reject claims of rights abuse and discrimination, the ruling dispensation has made its malintentions clear: it will question, and question crudely and in mob rule style, the very edifice of the Indian constitutional order. 

Dubey especially (though Dhankar is crucial too) is considered the favoured verbal hit-man of this government, making public postulations that are offensive, abusive and go unrebuked by his seniors. When he accused the CJI of instigating religious wars (sic), and then turned his tongue lashing on a former chief election commissioner, he was following in the footsteps of a mentor. Flashback to 2017, when a former vice-president, Hamid Ansari, was set to leave his post having been appointed by the United Progressive Alliance (UPA-II). Speaking in parliament on the occasion, the prime minister insinuated partisan conduct against the ruling party, and worse, being influenced by his allegiance to his own faith (Ansari being a Muslim) from the diplomatic positions he had held in the past in West Asia. This sort of communal slurs on the base of identity are vintage Sangh, at whatever level they emanate from, MP, VP, SG or higher. 

Also read: What S.Y. Quraishi Is Going Through Now, Hamid Ansari Had Gone Through as Well

The sharp rebuke also from the Chief Justice of India, Sanjeev Khanna, on April 16, 2025, to SG Mehta when he tried to impute (on the court’s questioning if Muslims have been present on Hindu endowment boards) that a non-Muslim bench then cannot hear the case, is telling as it is constitutional and sober"

“When we are sitting here to adjudicate, we lose our religion. We are talking about a Board which is managing religious affairs. Let’s say in Hindu temple, all are Hindu in the Governor Council. How are you comparing this with judges?”

For the Sangh and its proponents, secular is Hindu, diversity is Hindu and the constitution a bitter, uncomfortable reality that must also be twisted to overrule its mandate to uphold a composite, secular, non-partisan state. Inclusion and equity, non-discrimination and level playing field, are anathema. 

The constitutional courts are there to protect just such an offensive assault, and incursion. The question is, as the arrows sharpen, brute words and worse are unleashed, the M’Lords and M’Ladies (wish there were more of them) will need to step in and steady the ship and stay the course.

Teesta Setalvad is a rights activist and journalist.

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