Post-mortem of a PIL

I am writing this blog for my own satisfaction, after the Supreme Court disposed of our public interest litigation without proper hearing, on May 15 2025. We had filed the cases in 2007. This post must be read in conjunction with my chapters on litigating against counterinsurgency in my book, The Burning Forest, which deal in more detail with the 2011 judgement. 

The Supreme Court in Modi's India

In what is globally called ‘autocratic legalism’, current authoritarian regimes maintain a semblance of legality and constitutionalism while in practice attempting to remake the judiciary in their own image. In this article, published in the new Journal of Right-Wing Studies, published out of Berkeley University,  I look at how the Indian Supreme Court (SC) has responded to executive incursions under the Narendra Modi regime since 2014. Even today, the court continues to deliver important democracy-enhancing judgments, breaking away from India’s colonial inheritance in matters like criminalizing same-sex relationships and adultery. However, the last decade is strongly marked by two features: first, an unwillingness to hear major constitutional issues that might challenge the regime; and second, judgments that serve as an advertorial for the regime, reinforcing an antiminority ideological orientation, justifying the government’s actions, and promoting Modi’s personality cult. By outsourcing several political decisions to a seemingly disinterested and neutral judiciary, the Modi government has been far more successful than it would have been if it had imposed those decisions purely by legislative majority. In turn, by addressing a variety of political issues as purely procedural matters and not addressing them as constitutional questions, the courts have collaborated in the delegitimization of dissent and reinforced the claims of the Modi regime.

https://escholarship.org/uc/item/313700c7

Setalvad, Sreekumar's Real 'Crime' Was Raising the Question of Modi's Command Responsibility

It is, perhaps, not a coincidence that Teesta Setalvad and former Gujarat police officer R.B. Sreekumar were arrested on June 25, 2022, the anniversary of the Emergency.

Another former police officer Sanjeev Bhatt, who is already in jail, has also been charged in the alleged common conspiracy to tarnish the image of Gujarat’s administration. They have been booked under Sections 468, 471 (forgery), 194 (fabricating false evidence), 211 (instituting criminal proceedings to cause injury), 218 (public servant making incorrect record or writing with intent to save person from punishment), and 120B (criminal conspiracy). On July 2, they were remanded to 14 days of judicial custody, after four days of police custody. 

As a tit-for-tat gesture for their ‘audacity’ in getting the Special Investigative Team (SIT) to question Prime Minister Modi – even such a friendly SIT as the one headed by formerCBI chief R.K. Raghavan – the Gujarat Police has now set up its own SIT to investigate Setalvad, Sreekumar and Bhatt, alleging that they were aided by foreign funds and opposition politicians in their purported enterprise. 

The clear signal being sent out by the courts, police and ruling political dispensation alike is that we are in a de facto Emergency, in which a legal fight for constitutional rights or calling the administration to account, is a crime.