Will the Judiciary Counter the Sangh’s Attack on the Indian Constitutional Order?

April 2025 was a month that must be marked by all who uphold the Indian Constitution. It was unlike any other in the past 11 years. 

Two significant developments in the Supreme Court provided hope and renewal for some but not for others. Riled up and threatened more than before, are the forces that are ideologically and organisationally committed to a subversion and possible overturning of the Indian constitutional order. 

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, came another marker. The Supreme Court made its views on its intentions to stay the contentious amended Waqf Law of 2025, clear. A bench consisting of none less than Chief Justice of India (CJI) Sanjeev Khanna, 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 of India some time to detail its claims of large scale Waqf land abuse until the next hearing but stayed operations of the most egregious sections of the new law.

Two days later and since, hell has been let loose by senior functionaries of the ruling party, as they heaped direct and indirect abuse on the Indian higher judiciary. Were these the “consequences” that the SG was “warning” the Supreme Court of? 

Abuse from one, Bihar MP Nishikant Dubey, and an open challenge from the other, former Governor of West Bengal and current Vice President of India Jagdeep Dhankar, came in. 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.

While the BJP, through its president J.P. Nadda, has ‘distanced’ itself from Dubey’s statement, there has only been silence on Dhankar’s rather brazen verbal assault, a silence that is quite telling.

Dhankar questioned the basic structure doctrine and the Supreme Court’s interpretation of Article 200 and application of Article 142 in the governor’s case. While he has been at it for some time, Dhankar has intensified the frontal attack on the independence of the Indian judiciary recently. 

Dubey, who spoke two days after the top court’s hearings on the Waqf law on April 19, in crude, street parlance has, accused the highest court in the land and the CJI of fomenting religious wars in the country.He also hit out at a former chief election commissioner, S.Y. Qureishi on grounds of his religious identity. 

Both have been ready pugilists for this government which is currently in its third term. Dubey and Dhankar have in the past, too, hogged headlines for their loud and aggressive pronouncements. 

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 tricolor – its cult worship of the bhagwa jhanda represents its commitment to the monolith of an ‘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 that has collectively strived 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 pretenses of elections and democracy but where the will of a privileged majority rides roughshod over the many. 

Hence, one sees the collective and shrill abuse of the political opposition from the ruling party and its spokespersons, the take-over of large sections of the media, the abuse and violations of all parliamentary procedure and norm to run amok and pass laws that do not represent the will of large sections of the Indian people. In fact, they are using the parliament to dismantle the Constitution, brick by brick.

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 and draconian laws have been amended or used to stifle dissent. 

The constitutional court, in such a situation, is – or should be – the Indian people’s last resort. While in some cases, it has chipped away at some seminal damage, in many others, judicial review has been deterred, deferred or delayed. 

This is why April 2025 represented such a breath of fresh air and the burgeoning of hope, when different constitutional courts took the views that they did. The winds of change could be seen last November too when for the first time – curbing malafide and discriminatory bulldozer action– the Supreme Court issued detailed strictures and guidelines. As a follow-up, the court has last month penalised administrators for not following judicial directives.

While for many this signaled hope and some relief, for others, especially those 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, the ruling dispensation has made its ill intentions clear: it will question, crudely and in mob rule style, the very edifice of the Indian constitutional order. 

A point of order here. Dubey – though Dhankar is crucial too – is considered the favoured verbal hit-man of this government, making public postulations that are offensive, abusive and un-rebuked 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, vice-president or higher. 

Solicitor general Tushar Mehta getting rebuked by CJI Khanna is also telling. When Mehta said that a non-Muslim bench cannot hear the Waqf amendment case in response to the court’s question about Muslims being present on Hindu endowment boards, CJI Khanna said, “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, secularism 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 such an offensive assault and incursion. The question is, as the arrows sharpen, brute words and worse are unleashed, the judiciary will need to step in and steady the ship for a convincing and lasting push pack. With a citizen’s fervent hope and belief that they will.