Having captured the legislature and the executive, the judiciary is the final bastion of the Republic that the Hindu Rashtra project is seeking to vanquish

THE RECENT TRENCHANT VILLIFICATION of the Supreme Court and the judiciary by Vice President Jagdeep Dhankar and BJP MP Nishikant Dubey is in reality an attack against the Constitution and its fundamental principles and values. When the Vice President and Mr. Dubey reject judicial review of the actions of the highest authorities — of the President and of Parliament — they are, in effect, asking for the restoration of the pre-Constitutional principle that the “king can do no wrong”. By rejecting the Supreme Court’s protection of the constitutional rights of backward classes, minorities, Scheduled Castes, Scheduled Tribes and women against exploitation, dehumanisation and oppression as “triggering civil war”, they are, in effect, lauding the perpetuation of exploitation, dehumanisation and oppression as “social peace”.Instead of being concerned that the request of a state legislature for assent to laws they adopted was not disposed of on a timely basis, the Vice President is incensed that the Supreme Court set out a time frame within which the President should decide on assent to protect the right of a state legislature to enact the laws..A century-old project led by the Rashtriya Swayamsevak Sangh seeks to establish a theocratic, autocratic hierarchical Hindu Rashtra in India..Unpacking the attack against the judiciary and the Supreme Court?A century-old project led by the Rashtriya Swayamsevak Sangh seeks to establish a theocratic, autocratic hierarchical Hindu Rashtra in India. The adoption of a liberal democratic Constitution which enjoys the support of the masses instead of a Hindu Rashtra as India’s post-independence polity presented the Hindu Rashtra project with the huge challenge of overthrowing the Constitution to achieve its aim because the secular, democratic Constitution conflicts directly with the theocratic, autocratic Hindu Rashtra vision. Taking down the Constitution in substance, if not in form, has been a foremost objective of the project ever since. The Modi government has carried forward the Hindu Rashtra project at the Union level with unprecedented speed, intensity and force over the last decade, especially since 2019. The project has also moved forward in several BJP ruled states to varying degrees starting in the first decade of this century. As a result, in BJP ruled States and in the Union, the executive and the legislative branches have by now been brought under the control of Hindu Rashtra forces and have been considerably Hinduised and “liberated” from the secular, socialist democratic content of the Constitution. This has happened to such an extent that it appears that a nascent Hindu Rashtra is already in place in India as far as the executive and legislative branches are concerned..Justice Shekhar Kumar Yadav, ‘Hindu’ judges and Ambedkar’s prophecy.Controlling the judiciary as soon as possible is vital for the Hindu Rashtra project. It may not be practicable to proclaim India as a Hindu Rashtra through Parliament abrogating the present Constitution and adopting a new Hindu Constitution as this may face mass opposition from the people. A more practicable way to proclaim a Hindu Rashtra may be through judicial (mis)interpretation by the Supreme Court of the current Constitution as a Hindu Constitution and the Republic as a Hindu Rashtra, accompanied by other complementary (mis)interpretations of several aspects of the Constitution and the laws.However, the Hindu Rashtra project has been unable to make adequate inroads into the judicial branch . Over a decade after the Modi government came to power, there are only two of 32 sitting judges of the Supreme Court (as of April 24, 2024) whose first appointment to a constitutional court (either as a High Court or a Supreme Court judge) was vetted by the Modi regime. The two judges vetted by the Modi government were directly appointed to the Supreme Court from the Bar in 2021 and 2023. Two other sitting judges were vetted by the Atal Behari Vajpayee government when they were appointed as High Court judges in 2003 — amongst sitting Supreme Court judges they have the longest experience as judges of constitutional courts and are both highly respected judges.While some decisions of the Supreme Court and of High Courts have embraced the Hindu Rashtra idea to a greater or lesser extent and look to “Sanatana Dharma” as a source of founding values or “grundnorm” (such judgments may be called “theocratic” as against “constitutionalist” judgments which sources their founding values only from the Constitution), the judiciary, as a whole, is presently the only branch of the State which is not under the total control of Hindu Rashtra votaries, and which still has a possibility of defending the Constitution and staving off the imposition of a theocratic, autocratic Hindu Rashtra. .These votaries of the Hindu Rashtra do not want a compliant judiciary — in fact, they do not want a judiciary at all..Part of the reason for the “holding out” by the judiciary may be that, thanks to the collegium system, the BJP and RSS have not been able to directly influence judicial appointments as much as they would have been able to do, had there been no collegium mechanism. What if hypothetically the National Judicial Appointments Commission (NJAC) Act had not been struck down by the Supreme Court and consequently the collegium had been abolished and appointments were made by NJAC? Given that the NJAC was to have six members (CJI; the two most senior judges of the Supreme Court after the Chief Justice; the Law Minister; and two eminent jurists selected by a three person selection committee consisting of the Chief Justice of India, the Prime Minister and the Leader of the Opposition), all it would have taken for the Government to gain full control over the appointment of Supreme Court judges would have been to have a Chief Justice (there have been eleven of them since 26 May 2014) align with the Government on the selection of the two jurist members of NJAC and, after that, for any one of the three judges who are on the NJAC (including CJI) to align with the Law Minister and the two jurists on the actual selection of judges. Without the collegium system, therefore, by now, it is conceivable that many, if not all, of some 51 vacancies that have occurred in the Supreme Court after the Modi Government came to power on 26 May 2014, would have been filled by judges aligned with the Hindu Rashtra project either by direct elevation from the Bar or the High Courts or from the ranks of “jurists” and this bastion of the Republic too would have fallen. The same logic would broadly apply to selection of High Court judges. This calamity has been prevented by the collegium system which is, at least as of now, a definite stumbling block for the Hindu Rashtra project of bringing the judicial branch under its total control. There is therefore intense frustration and anger against the judiciary amongst many of the supporters of the Hindu Rashtra project. They are dissatisfied that the Supreme Court is not wholly abandoning the rule of law. The Court is still asking for legal justification and evidence for Hindu Rashtra claims such as building temples or for implementing new laws on Waqf that will in effect choke Muslim religious institutions.These votaries of the Hindu Rashtra do not want a compliant judiciary — in fact, they do not want a judiciary at all. Their plan is to revert to a system in which “wise” Brahmins will decide what is right or wrong in accordance with the Shastras and Sanatana Dharma. It does not bother them that the Republic is being taken down and a Hindu Rashtra is being constructed by a BJP Government without a popular mandate to do so — in 2024, BJP secured only some 36.5 percent of the total votes cast in 2024 (236 million) which is about 16.5 percent of the total population of India. The BJP does not currently have a single party majority in the Lok Sabha. Supporters of the Hindu Rashtra project want to see the Supreme Court and High Courts filled with judges who are ideologically committed to the Hindu Rashtra project, and will move the project forward apace.What should the response to these attacks be?The collegium system should be strengthened and maintained so as to ensure that only those who will protect and defend the Constitution are selected as judges. Those who seek to replace the Constitution with a Hindu Rashtra should not be allowed to be part of the selection process for appointment of Supreme Court and High Court judges.The initiation of criminal contempt against these political leaders may only serve to give the impression that the judiciary violates the “Non judex in causa sua” principle ("no one should be a judge in his own case”), deciding whether the impugned speech against itself has “scandalised or lowered the court's authority” without any objective criteria or evidence to prove that this has indeed happened..The attacks provide an opportunity for the Supreme Court and High Courts and judicial academies to raise public awareness about the Constitution and what it means for the common people of India. .The year that was–9 | The year of the Hindutva judge.In today’s world of social media and mass communication, courts in India should move beyond the ancient principle that courts and judges only speak through their judgments. They should respond to such criticisms with reason and courtesy and explain the judgments concerned in simple lay person’s terms. The oaths of office prescribed by the Constitution for Supreme Court judges, High Court judges and the Comptroller and Auditor General of India have five additional words not found in any other oath: “I will uphold the Constitution”. These five words must be taken by judges with utmost seriousness in these perilous times. Judges must proactively uphold the Constitution in letter and spirit. To better protect the Constitution from its gravest threat, the time has also come to confront and repudiate effectively the idea of a theocratic, autocratic Hindu Rashtra in India..Note: A slightly modified version of this piece appeared simultaneously in The National Herald. This article was slightly updated on April 27, 2025.

Having captured the legislature and the executive, the judiciary is the final bastion of the Republic that the Hindu Rashtra project is seeking to vanquish

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