Autocratic Legalism and Juridical Veto: Reflections on Politics and the Law in India

Abstract

Much ink has been spilt on the errors and lapses of juridical pronouncements by the higher judiciary in India. Such commentary is valuable for tracing changes in the politico-juridical and social context, as well as, the impact of such errors and lapses on fundamental rights and related laws. However, perhaps, more important are the cases where the judiciary has not spoken, sometimes for years, despite having been petitioned by numerous affected parties and other times under public-interest litigation. The impact of such ‘juridical pocket veto’ is that legal liminality is allowed to operate and thus, a situation of autocratic legalism is produced wherein the action of the executive or legislature is seen as legal in its technicality but in the absence of adequate judicial review, creates an autocratic outcome for the polity at large, which in turn reinforces governmentalisation and undermines the liberal script.