Judicial powerplay: independence of judiciary under the shadow of illiberalism

Abstract

The Supreme Court of India, previously known as a belligerent counter-majoritarian institution, is now criticized for avoiding confrontation with the executive. Except for a few decisions, the Court has maintained a largely pro-government position between 2014 and 2024. Puzzlingly, this shift has occurred without the capture of the Court, as is often the case in illiberal democracies. To explain this phenomenon, I propose shifting the focus from institutional design features, which preoccupies studies on illiberal democracies, to unpacking the power dynamics within the judiciary. By analysing the Babri Masjid and Election Commission cases, I argue that judges function as strategic decision-makers, factoring political, social, and judicial power in their decisions. This feature of judicial craft best explains the Court’s behaviour in the last decade. Moreover, it reveals the limits of institutional design in securing judicial independence by highlighting that even isolated judiciaries cannot eliminate non-legal influences from their decision-making processes.