The constitutional promises of equality, liberty, and non-discrimination under Articles 14, 15, 19, 21, and 25 were designed to safeguard both the individual citizen and the institutional architecture of the Republic. Today, however, India is confronted with a moment of dual vulnerability in the backdrop of Refer D.Y. Chandrachud, speech at Bombay High Court Day, 2021 (“Judicial populism is antithetical to constitutionalism”), Justice Madan B. Lokur interview, The Wire, 2020 (“There is a climate of fear”), Court on Its Own Motion v. State (NCT of Delhi), Delhi High Court (26 Feb 2020): Bench of S. Muralidhar & A. Bhambhani, transfer notification issued same night, Justice K.M. Joseph Elevation Controversy, 2018–2019, (Collegium Resolutions available on SC website), Justice Rohinton Nariman, IIC Lecture, 2021 (“Judiciary facing crisis of courage”), the SC handling of the UMEED Act, etc.
Indian Muslims appear increasingly besieged socially, politically, and administratively, while the Indian judiciary itself appears besieged institutionally, structurally, and psychologically. One community experiences the siege through policing, legislation, political exclusion, and cultural hostility; the other experiences it through executive interference, control-by-transfers, public intimidation, and the erosion of internal autonomy.
The siege of the minority and the siege of the judiciary are not independent phenomena. They are intertwined in a mutually reinforcing constitutionally aberrant cycle: a judiciary unable to assert its counter-majoritarian role leaves minorities exposed, and a political structure emboldened to target minorities inevitably pressures courts to conform to majoritarian sentiment. Thus, the siege is both reciprocal and symbiotic. A plethora of unconstitutional laws, surprisingly upheld by Constitutional Courts, unfortunately dovetails into and reinforces both.
The crisis must be situated within the framework of the Counter-Majoritarian Difficulty (CMD): the principle that courts must act as bulwarks against the tyranny of the majority. Increasingly, however, the Indian judiciary appears either unwilling or unable to embrace this role. As Chandrachud cautioned, “Judicial populism is antithetical to constitutionalism”. Rohinton Nariman, too, has lamented the emergence of a “crisis of courage”.
At the heart of this crisis lies the erosion of Constitutional Morality, the Ambedkarite ethic that demands judges “stand by the Constitution” even when the winds of popular sentiment blow strongly elsewhere. A judiciary that aligns its decisions with majoritarian approval rather than constitutional discipline mirrors patterns of democratic decay visible in states like Poland and Hungary, where political executives systematically weakened judicial autonomy.
This retreat from constitutional morality forms the intellectual backdrop for the siege-like conditions experienced by both Indian minorities and the judiciary itself.
Over the past decade, a consistent pattern of legal and administrative developments has materially eroded the lived constitutional experience of Indian Muslims.
Seemingly selective policing and disproportionate prosecutions are rife. The aftermath of the anti-CAA protests and the 2020 Delhi riots illustrates how criminal law mechanisms have disproportionately targeted Muslims. Bail orders from the Delhi High Court, such as Asif Iqbal Tanha v. State and Devangana Kalita v. State, explicitly criticised the State for “blurring the line between dissent and terrorism” and relying on vague, uncorroborated allegations. The Supreme Court declined to interfere with these bail orders, implicitly acknowledging the overbreadth of the prosecution. Executive overreach, which ought to have generated judicial displeasure instead saw regrettable judicial retreat.
Bulldozer justice
Bulldozer justice and punitive demolitions have not abated. Several high courts have condemned the use of demolitions as instantaneous, extra-legal punishment following allegations of wrongdoing. In Jamiat Ulama-i-Hind v. Union of India, the Supreme Court held that demolitions cannot be punitive. In Parvez Alam v. State of M.P., the Madhya Pradesh High Court required due process and notice. In Ishaq v. State of UP, the Allahabad High Court likened the speed of demolitions to thunder following lightning.
Despite these judicial pronouncements, demolitions, almost exclusively targeting Muslim localities, and sometimes homes of accused individuals, have continued, indicating a widening gap between judicial directives and administrative conduct. Judicial indifference has emboldened mala fide executive overreach.
Hate speech and institutional hesitation seem only to grow. Although the Supreme Court in Shaheen Abdulla v. Union of India mandated suo motu state action against hate speech, courts have frequently delayed listing or adjudicating petitions involving incendiary statements made at Dharam Sansads or political rallies. The state itself has demonstrated impotence in merely looking away. The cumulative effect is an environment in which minorities experience verbal hostility as an everyday feature of public discourse, with absent, illusory or limited institutional protection.
Religious sites face continued threats, and the erosion of the Places of Worship (Special Provisions) Act, 1991 is depressing. The 1991 Act was enacted to preserve inter-religious peace by freezing the religious character of places of worship. Yet courts are increasingly entertaining petitions to “restore” temples at mosque sites—notably the Gyanvapi and Mathura litigations. The Ayodhya judgment, while reaffirming the Act, simultaneously awarded the disputed land to those responsible for the unlawful demolition of the Babri Masjid, sending a contradictory institutional message.
Caution against pitfalls
Citizenship erosion, endowments facing extinction, and political exclusion cannot be denied. The CAA – NRC – NPR framework disproportionately threatens Muslim citizenship security. Additionally, Wakf endowments face increasing state encroachment, and Muslim political representation at the national level has reached historic lows. This political rendering-invisible has directly influenced the stability of minority rights.
Collectively, these developments represent a systematic constriction of Muslim civil, political, and cultural space.
There is a subtle covert judicial siege visible with the judiciary facing structural, political, and psychological pressures. The Indian judiciary, once a robust guardian of constitutional liberties, faces its own form of siege.
Judicial transfers, elevation delays, and non-elevations exemplified by the transfer of Justice S. Muralidhar mere hours after directing FIRs in hate-speech cases profoundly signalled the vulnerability of independent judicial action. The prolonged non-elevation of Justice Akil Kureshi, delays surrounding Justice K.M. Joseph, and the absence of Muslim judges in the Supreme Court highlight executive influence and the chilling effect it produces.
Impartial judges now face coordinated online trolling, orchestrated vilification campaigns, and implicit threats. Justice Rohinton Nariman’s observation of a “crisis of courage” and Justice Chandrachud’s warnings against judicial populism underscore the psychological and institutional pressures shaping adjudication.
Listing of cases
Growing administrative control through rosters and listings is another issue. Control over the listing of cases, particularly those involving hate speech, demolitions, or constitutional challenges like the CAA, has enabled subtle forms of pressure. Delays in hearing such matters weaken judicial primacy and reinforce majoritarian legal narratives.
The most insidious pressure is the unconscious internalisation of majoritarian assumptions. When judges begin aligning decisions with social or political majorities rather than constitutional morality, judicial independence erodes from within.
Thus, both the external environment and internal institutional dynamics contribute to a judiciary increasingly constrained in its counter-majoritarian role.
The triple sieges, a siege on minorities, a simultaneous siege on the judiciary, and a third subtler and more sinister siege of minorities through proliferating unconstitutional minority hostile legislations are all mutually reinforcing by dovetailing into each other, and a judiciary under pressure becomes hesitant to intervene in cases involving minority rights. Minority vulnerability grows when courts exhibit deference to majoritarian institutions.
Administrative overreach intensifies when judicial scrutiny weakens. Judicial timidity deepens when political actors expect alignment with dominant sentiment, and non-compliance carries consequences. This self-reinforcing cycle constitutes a constitutional feedback loop of vulnerability that threatens the Republic’s secular and democratic foundations.
Reforms are essential
Breaking the cycle and restoring judicial primacy, and protecting minority rights are essential. Reversing the triple siege requires simultaneous reinforcement of judicial independence and minority protections. The following reforms, if I may say so, are crucial:
- Structural reform of judicial appointments by establishing statutory timelines for processing collegium recommendations, creation of an independent judicial appointment secretariat insulated from executive influence, and implementing a five-year cooling-off period for post-retirement positions to eliminate subconscious judicial dependency on executive largesse.
- Procedural reforms to ensure timely adjudication by fast-tracking hate-speech, demolition, and communal violence cases, mandatory automatic listing of constitutional challenges, ensuring consistent enforcement of binding precedents like the Places of Worship Act across judicial jurisdictions and avoiding aberrations as primarily seen in the northern states.
- Normative and cultural reforms within the judiciary so as to institutionalise dissent as a core constitutional value, reinvigorating the doctrine of constitutional morality, incorporating secular ethics and anti-majoritarian principles into legal education and bar conduct.
- Protection and insulation of judges from pressures by enacting statutory measures against coordinated or one-off online intimidation, providing a security-of-tenure infrastructure independent of executive control, and institutionalising anonymised bench constitution for “high-voltage” matters.
- Public engagement and constitutional culture, by increase in judicial transparency through public summaries and timelines, strengthening civil society’s role in constitutional dialogue, especially by encouraging bar associations to defend judicial independence by a rewards scheme where possible.
Adjacent frontiers
The Indian Muslim and the Indian judge now stand on adjacent frontiers of constitutional vulnerability, and potentially a shared destiny. The erosion of the rights of the one go hand in hand with the obliteration of the independence of the other. Their experiences are intertwined, for a judiciary that cannot protect itself cannot protect minorities, and any political order that targets minorities inevitably seeks to subordinate the judiciary that it sees as an obstacle to its agenda.
Restoring judicial primacy is therefore not merely an institutional necessity, it is an imperative, and an immediate one at that, for safeguarding the constitutional citizenship of minorities. Likewise, securing minority rights fortifies the judiciary’s moral and constitutional authority.
A Republic that protects both its beleaguered people and its beleaguered courts reclaims its constitutional soul. The path forward lies in reaffirming the courage of the Constitution within its institutions and renewing the promise of equal citizenship for all who stand vulnerable within the nation’s democratic fabric.
Jai Hind.
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