By Ramphal Kataria
Judicial Courage in America, Judicial Caution in India
“However good a Constitution may be, it is sure to turn out bad if those who are called to work it happen to be a bad lot.”
— B. R. Ambedkar
On February 20, 2026, something increasingly rare occurred in constitutional democracies drifting toward executive dominance: a court said no.
In a 6–3 ruling, the Supreme Court of the United States struck down sweeping global tariffs imposed unilaterally by President Donald Trump, holding that emergency economic powers do not authorise tariff-making. Writing for the majority, Chief Justice John Roberts reaffirmed a first principle of constitutional governance: taxation belongs to the legislature, not the executive. Justice Neil Gorsuch went further, reminding the Court that unaccountable taxation was among the abuses that triggered the American Revolution itself.
“Emergency powers cannot be allowed to swallow constitutional structure.”
This was not merely a trade dispute. It was a reassertion of separation of powers, the major questions doctrine, and—most importantly—judicial courage.
For India, the judgment should have been more than comparative interest. It should have been a mirror.
A Court Designed to Be Supreme—and One That Hesitates to Act Like It
Few constitutional courts in the world are as textually powerful as the Supreme Court of India.
Article 32 allows citizens direct access for enforcement of fundamental rights—what Ambedkar called “the very soul of the Constitution.”
Article 13 empowers judicial invalidation of unconstitutional state action.
Article 141 makes its law binding on all courts.
Article 50 mandates separation of the judiciary from the executive.
And yet, constitutional supremacy on paper has increasingly translated into institutional caution in practice.
“India’s Supreme Court is constitutionally supreme—but institutionally hesitant.”
Where the U.S. Supreme Court confronted executive overreach early and decisively, India’s apex court has too often deferred, delayed, or domesticated constitutional conflict—allowing executive power to harden into fait accompli.
The difference is not constitutional text. It is constitutional temperament.
Article 370: Federalism Rewritten Through Judicial Deference
The most consequential example is the 2023 ruling upholding the unilateral abrogation of Jammu and Kashmir’s special constitutional status.
The Court accepted executive actions taken under prolonged presidential rule, endorsed retrospective reinterpretations of accession, and treated federal consent as dispensable. A provision meant to manage a sensitive federal compact became a legal pathway for permanent centralisation.
This was not constitutional interpretation—it was constitutional accommodation.
“A Constitution that once restrained power now explains it.”
Contrast this with the U.S. tariff ruling. There, even foreign policy and economic urgency could not substitute for legislative authorisation. In India, by contrast, the Court allowed executive convenience to override federal structure—without even invoking the basic structure doctrine it once used to restrain Parliament itself.
Ayodhya: Law Condemned, Illegality Rewarded
The Ayodhya title judgment is often defended as pragmatic conflict resolution. But constitutional courts do not exist to manage sentiment; they exist to enforce principle.
The Court acknowledged that the demolition of the Babri Masjid was illegal—then nonetheless awarded the disputed land for temple construction. Illegality was condemned rhetorically and rewarded substantively.
“The judgment punished illegality in words and rewarded it in outcome.”
This marked a profound shift—from rights-based adjudication to majoritarian accommodation. Faith inherited the fruits of illegality, and constitutional morality yielded to political closure.
Ambedkar had warned precisely against this temptation: constitutional morality is not natural; it must be cultivated—especially when public sentiment demands otherwise.
Electoral Bonds: Judicial Correction Without Democratic Repair
When the Court finally struck down the Electoral Bonds Scheme in 2024, the verdict was legally sound—and constitutionally incomplete.
For seven years, anonymous corporate funding distorted electoral competition, entrenched inequality, and hollowed out democratic transparency. The Court intervened only after the damage was structurally irreversible, and declined to order restitution or accountability.
“Justice delayed here was not neutral; it reshaped democracy.”
Compare this with the U.S. tariff ruling, where the Court openly contemplated refunds running into hundreds of billions of dollars—recognising that unconstitutional extraction cannot simply be declared unlawful and left uncorrected.
In India, relief was declaratory. Consequences were allowed to stand.
Liberty Deferred: The Normalisation of Pre-Trial Punishment
Nowhere is judicial abdication more visible than in prolonged pre-trial incarceration under anti-terror laws.
The continued incarceration of Umar Khalid—over five years without trial—exposes how Article 21 collapses when courts normalise delay. Bail hearings are adjourned, trials stagnate, and constitutional guarantees become ornamental.
The Court continues to repeat that “bail is the rule, jail the exception.” In practice, the reverse has become routine.
“Liberty survives in doctrine; incarceration governs reality.”
This is not judicial restraint. It is judicial participation in carceral governance.
Delay as Constitutional Method
Judicial delay is often defended as backlog or institutional overload. In constitutional cases, this explanation no longer holds.
Delay has become a mode of governance.
It allows executive actions to harden into irreversible reality.
It converts interim silence into final outcomes.
It avoids accountability by issuing no reasons at all.
Challenges to the Citizenship Amendment Act, electoral roll revisions, and surveillance regimes remain pending while their consequences reshape citizenship and political participation. By the time adjudication arrives—if it arrives—the constitutional injury has already been normalised.
“Delay is the perfect judicial alibi: it changes everything while saying nothing.”
The Article 370 challenge illustrates this perfectly. It was not heard when the injury was reversible. It was decided after statehood dissolved, demographics altered, and restoration became practically unimaginable.
Delay here was not incidental. It was determinative.
Selective Urgency and the Politics of the Docket
The Court insists it does not choose politics. But it undeniably chooses timing—and timing, in constitutional law, is destiny.
It moves swiftly when institutional power or executive validation is at stake.
It moves slowly when minority rights, electoral fairness, or ideological scrutiny are involved.
Hate speech by powerful incumbents is routinely deflected downward. Constitutional scrutiny is politely avoided.
This asymmetry is not accidental. It reflects priorities.
What One Court Remembered—and the Other Forgot
The U.S. tariff ruling rested on three foundational commitments:
Separation of Powers — Core fiscal authority belongs to the legislature.
Major Questions Doctrine — Vast economic consequences require explicit statutory mandate.
Judicial Courage — Courts must enforce limits even against dominant executives.
India’s Supreme Court has too often inverted these principles—treating executive intent as constitutional wisdom and dissent as inconvenience.
The difference is not law. It is will.
Ambedkar’s Warning—and Khanna’s Example
Ambedkar foresaw this danger with chilling clarity: constitutional breakdown rarely occurs through dramatic overthrow. It occurs through institutional acquiescence.
During the Emergency, Justice H. R. Khanna proved that a single judge could save a Constitution—by dissenting when all others yielded.
Today, the tragedy is not absence of precedent. It is absence of resolve.
Conclusion: The Quiet Death of Supremacy
The tragedy is not that India’s Supreme Court sometimes rules in favour of the government. Courts inevitably do.
The tragedy is that it increasingly fails to assert its own supremacy—not over Parliament, but over constitutional meaning itself.
Courts possess neither purse nor sword. Their authority rests entirely on public confidence. When citizens begin to perceive the Supreme Court not as an independent arbiter but as a silent partner in executive consolidation, constitutional democracy enters perilous terrain.
“If the strongest executive in the world can be restrained by his court, India’s crisis is no longer about power—but about judicial will.”
A Constitution does not die when it is amended, ignored, or even violated.
It dies when its guardian decides that waiting is safer than enforcing.
Footnotes
1. In Re: Article 370 of the Constitution of India, (2023) SCC OnLine SC 1478.
2. M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das, (2019) 18 SCC 1.
3. Association for Democratic Reforms v. Union of India, (2024) SCC OnLine SC 123.
4. Umar Khalid v. State (NCT of Delhi), Bail Orders & Transfer Petitions, 2020–2024.
5. Trump v. United States, 602 U.S. ___ (2026).
6. West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022).
7. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
8. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
9. State of Rajasthan v. Balchand, (1977) 4 SCC 308.
10. Constituent Assembly Debates, Vol. VII, Dr. B. R. Ambedkar.
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