Constitutional drift and judicial deference: The Supreme Court post-2014

Since 2014, the Supreme Court of India has been called upon to decide questions that strike at the very architecture of the Constitution - those on religion and secularism, federalism, liberty, electoral democracy, economic power, surveillance and environmental protection. While each case has formally turned on its own facts, a cumulative reading of the Court’s post-2014 jurisprudence reveals a discernible pattern: a growing judicial preference for restraint when executive power is at stake, interrupted only by episodic assertions of constitutional authority.

This is not a story of judicial collapse. It is a story of constitutional drift, where deference hardens into doctrine, delay substitutes decision and accommodation replaces accountability.

The paradox appears early. In the NJAC judgment (2015), the Court struck down a constitutional amendment to preserve judicial primacy in appointments, forcefully asserting institutional independence. Yet, this vigilance proved largely inward-looking. When democratic institutions outside the judiciary came under strain, similar constitutional intensity was missing. This contrast is visible in federal disputes. In repeated confrontations between Governors and elected State governments such as Tamil Nadu, Kerala, West Bengal, the Court avoided laying down enforceable limits on gubernatorial discretion under Articles 200 and 201. The silence effectively normalised executive delay and unelected veto.

The tension culminated in Government of NCT of Delhi v. Union of India. While the 2018 judgment affirmed representative governance and cooperative federalism, the 2023 ruling upheld parliament’s legislative override, signalling that federal autonomy is constitutionally reversible when executive necessity is asserted. That logic reached its constitutional extreme in In Re: Article 370 (2023). By validating irreversible constitutional change during President’s Rule, the Court collapsed the distinction between temporary emergency power and permanent constitutional transformation, reconfiguring federalism itself.

The Ayodhya judgment (2019) remains the most emblematic instance of accommodation. Even while declaring the demolition of the Babri Masjid illegal, the Court awarded the disputed land for temple construction, prioritising finality and social closure over accountability. Legality was acknowledged but consequence was deferred, reconciling constitutional wrong with political reality. Reliance on precedents such as Ismail Faruqui reinforced a diluted conception of secularism. A similar hesitation marked Sabarimala. The 2018 ruling upheld gender equality, yet the prolonged handling of review petitions transformed a rights-affirming judgment into constitutional ambiguity.

By contrast, Shayara Bano (Triple Talaq) saw decisive intervention in minority personal law, reinforcing perceptions of selective secularism.

In Assam Sanmilita Mahasangha (NRC), the Court supervised a process that produced detention, statelessness and procedural exclusion, while declining to confront its humanitarian fallout as a constitutional failure. The Citizenship Amendment Act presented an even starker example. By withholding interim relief and allowing prolonged pendency, the Court permitted executive policy to harden into fait accompli. Delay here was not neutral; it reshaped constitutional reality.

In Anuradha Bhasin, the Court recognised that internet shutdowns implicate fundamental rights, but declined to order restoration. Rights were acknowledged in theory, withheld in remedy. A pattern that would repeat across national security cases.

Nowhere is judicial deference more consequential than in bail jurisprudence under the Unlawful Activities (Prevention) Act (UAPA). Watali (2019) effectively collapsed judicial scrutiny at the bail stage, requiring courts to accept prosecutorial allegations at face value. Although KA Najeeb (2021) recognised that prolonged incarceration violates Article 21, subsequent cases including Umar Khalid and Gulfisha Fatima confirm that Watali remains the governing norm. Here, pre-trial detention increasingly operates as punishment by process, where ideological centrality substitutes evidence and delay becomes deterrence.

Against this backdrop, the Electoral Bonds judgment (2024) stands out. By striking down anonymous political funding, the Court reaffirmed the voter’s right to information. Yet, its very exceptionalism underscores the broader pattern. Constitutional intervention appears episodic, not systemic. Other electoral cases like PUCL (VVPAT), Ashwini Upadhyay and the limited post-2014 expansion of Lily Thomas reflect procedural minimalism rather than structural reform.

In Vivek Narayan Sharma (demonetisation), the Court deferred to executive wisdom despite profound economic disruption. Tribunalisation cases like Rojer Mathew and Madras Bar Association reveal repeated warnings without durable structural correction, allowing executive influence over adjudicatory bodies to persist.

Once celebrated for environmental constitutionalism, the Court has increasingly deferred to development narratives. Aravallis (MC Mehta), Godavarman and Great Indian Bustard reflect a shift from substantive ecological protection to negotiated compliance.

In Puttaswamy, (privacy), the Court constitutionalised dignity and autonomy. Yet, the Pegasus litigation exposed judicial reluctance in confronting executive opacity. Committees replaced accountability; doctrine stalled at recognition.

Finally, in matters of institutional self-scrutiny (Campaign for Judicial Accountability), the Court acknowledged accountability rhetorically while avoiding structural transparency.

Taken together, these decisions do not reveal abdication, but accumulation. Judicial restraint, when repeatedly aligned with executive priorities, recalibrates constitutional meaning without formal amendment. Silence, delay and selective scrutiny shape the Constitution as decisively as bold judgments.

The Supreme Court has shown, most recently in the Electoral Bonds case, that it retains the capacity for constitutional courage. The question is not whether it can act, but whether it will do so consistently, rather than exceptionally. Constitutional collapse announces itself loudly; constitutional drift does not. It settles quietly, case by case, until exception becomes norm and restraint begins to resemble abdication.

As Malikzada Manzoor cautions:

Rasm-E-Taazeem na ruswa ho jaaye,

Itna mat jhukiye keh sajda ho jaaye.

Syed Aqib Hussain is an Advocate practising before the High Court of J&K and Ladakh, and a Doctoral Scholar at SCALSAR, Symbiosis International (Deemed University), Pune.