Author
Asst Prof Manish
Organisation/Institution
National Law School of India University
Country
INDIA
Panel
Constitutional and Admin Law
Title
Legal protections for the opposition in an electoral autocracy: evaluating the role of the Supreme Court of India
Abstract
Protecting and empowering democracy in the region is essential to empowering Asia’s rise. Like elsewhere in the world, Asian countries face challenges to democracy closely linked with the rise of authoritarianism. These challenges call for locally tailored solutions departing from Global North constitutionalism. To this end, constitutional courts and scholars across Asia have developed unique methods such as the fixing of ‘guarantor institutions’ within local constitutional frameworks (Khaitan 2021, Samararatne 2024). Despite these developments, several other areas remain undertheorised in Asian constitutionalism. Within Asia, India occupies a significant role as the region’s largest constitutional democracy with a ‘strong-form’ court (Tushnet 2002). Using India as a primary case study, this paper seeks to analyse one such undertheorised area: the role of the opposition in a constitutional democracy. The Constitution of India does not explicitly define the “opposition”, thereby making its functioning entirely dependent on protections gained through judicial review (Ramkumar and Singh 2022). “Responsive” judicial review, drawing on practices from the Global South, asks courts to tailor scrutiny towards addressing democratic dysfunction (Dixon 2023). Building on this, the principle of “anti- entrenchment” suggests that in electoral autocracies, courts must review acts of the incumbent government with heightened scrutiny in “electorally consequential cases”, including ‘ordinary’ legal proceedings that affect the opposition’s effective functioning (Chandra 2024). Given that the exercise of judicial review in these situations is also subject to the risks of legislative backlash (Dixon 2023), courts, in addition to strengthening guarantor institutions, must also explicitly enable the political opposition to resolve these questions through the democratic process. This will involve both strong-form review of threats to electoral fairness, as well as ensuring that the legal process is not (mis)used by the government to curtail the functioning of the opposition. In this context, the paper will look at recent interventions by the Supreme Court of India in proceedings involving opposition leaders, placing them alongside select other Asian jurisdictions for comparison. I argue that the Court has exercised responsive judicial review, tacitly acknowledging the electoral imbalance in maintaining the status quo. I suggest that for the Court to elevate this to an anti-entrenchment principle, it needs to acknowledge the role of the opposition explicitly, which it has been hesitant to do.
Biography
I am a teacher of public law and legal theory, including core courses in constitutional law, jurisprudence and legal methods. My current research interests lie in constitutionalism as an ideology and its role in limiting state power during periods of authoritarianism and democratic decay. I am particularly interested in the role of constitutions in post-colonial societies and other perspectives from the Global South. I hold a Master of Laws from the University of Melbourne and an undergraduate degree in law from the National Law School of India University, Bangalore. Prior to embarking on my teaching career, I had a decade of work experience in academic, policy and activist spaces. I was previously a Senior Research Associate at the Centre for Policy Research, New Delhi where my work centred around the role of law in mediating state-citizen relationships in urban governance, focusing specifically on urban poverty, informal labour, and access to housing. I have also worked as a researcher at the National Law University, Delhi, on projects ranging from criminal justice system reform to hate speech and media law; and with the Centre for Social Justice, Ahmedabad where I led research and capacity building in interventions aimed at securing access to justice for marginalised communities.
