Kim Lane Scheppele, a scholar of constitutional law at Princeton, has drawn an important contrast between traditional autocrats and contemporary ones. If the autocrat’s moves in the 19th century were mass human rights violations and streets afloat with tanks, “the new autocrats come to power not with bullets but with laws.”
We see this in the co-opting of courts by populist regimes. In Turkey, Hagia Sophia’s conversion from a museum to a mosque was made possible by a judicial ruling. Poland’s Constitutional Tribunal approved changes to the National Council of the Judiciary that appoints judges and regulates their behavior, giving politicians far greater power over courts.
The Indian judicial approach of not only approving the government’s actions — like the courts in Hungary, Poland and Turkey — but also being absent, remaining silent while the state acts, raises a genuine puzzle. India’s judiciary possesses a rare institutional safeguard: Since the early 1990s, it has exercised formal control over the processes for the appointment of judges. The Indian Supreme Court’s rare confrontational decision in recent years was in 2015, when it struck down a federal commission for judicial appointments proposed by the government.
For decades, India’s higher judiciary has held extraordinary power and been noticeably interventionist, recognizing social welfare rights, passing wide-ranging interim orders that assess the work of executive ministries at regular intervals, and even reviewing and striking down constitutional amendments.
Yet the self-abrogation by the judiciary in India; court packing in Hungary, Poland and Turkey; and the strategy of submerging the courts with so much work that they are not able to scrutinize the government illustrate the demise of judicial power and the courts losing their institutional role in a variety of ways.
The lesson has been a sobering one for constitutional scholars. A generation ago, law students, whether in the United States or elsewhere, had interpreted the Warren Supreme Court era, which saw the expansion of civil rights, as the rule rather than the exception. It was hard to think of democratic constitutionalism in the absence of a powerful judiciary. Now it seems just as likely that when freedom is truly at stake, courts are quick to collapse, either from within or without.
The legitimacy of courts was never built on popular authorization from the people. It was built on the promise of keeping representation in check and protecting the people from the extremes of politics. The real question for the future is not how courts will act. It is whether their actions will carry legitimacy if and when they do.
Madhav Khosla teaches law and politics at Ashoka University and Columbia Law School. He is the author of “India’s Founding Moment: The Constitution of a Most Surprising Democracy.”
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