When the Supreme Court of the United States (SCOTUS) humbled President Donald Trump, the world’s most powerful man, by striking down the tariffs he had imposed on other nations, many in India would have turned wistful. They would have wondered whether the Supreme Court of India would ever muster the SCOTUS’ gumption to annul constitutionally suspect laws.

Over the past 11 years of Prime Minister Narendra Modi’s rule, the Supreme Court has inordinately delayed hearing constitutional challenges to laws until such time as these have already altered the reality. Its verdicts then read, willy-nilly, as justifications for the changed scenarios. Worse, it dithers on hearing bail applications of those against whom the government is perceived to be tilted.

SCOTUS annulled Trump’s tariffs because the American constitution explicitly vests the power to tax in Congress, not the President. It did so in less than a year of Trump slapping a minimum of 10 per cent “reciprocal tariff” on April 2, 2025.

Contrast the SCOTUS’ alacrity with the Supreme Court’s dilatory response to the challenges mounted against the abrogation of Article 370 and demotion of Jammu and Kashmir from a State to a Union Territory. One of the clauses of Article 370 explicitly said that this “article shall cease to be operative” only on the recommendation of the Jammu and Kashmir Constituent Assembly, which was dissolved in January 1957. Without the Constituent Assembly in existence, Article 370 acquired permanence. Further, the Presidential Order No. 48 of 1954 unambiguously stated that Parliament cannot alter Jammu and Kashmir’s area without the consent of its State Assembly.

Given these explicit constitutional provisions, the Supreme Court should have stayed the abrogation of Article 370 or speedily disposed of the challenge to it. The Supreme Court did neither, with its verdict delivered four years later, in December 2023. By then, nobody expected the court to roll back the sweeping administrative changes made in Jammu and Kashmir.

The same fate seemingly awaits the constitutional challenges mounted against the Election Commission’s decision to undertake a Special Intensive Revision of electoral rolls months before the Bihar Assembly election last year. The Supreme Court did not stay the SIR, and reserved the case for judgment on January 29.

From last year to now, Bihar had its Assembly election based on the electoral rolls subjected to SIR. This exercise is either complete or about to be completed in 12 other States/Union Territories. What would be the implications for Bihar in case the Supreme Court strikes down the SIR? Would those among the 12 States/Union Territories due to have their Assembly elections this year or the next revert to pre-SIR electoral rolls?

SCOTUS was not swayed by the argument that the striking down of Trump’s tariffs would create the gargantuan problem of refunding the money deemed to have been unconstitutionally taken from American businesses. What is illegal must be reversed.

This position the Supreme Court could take for striking down the SIR, which, according to the Representation of People Act, 1950, can only be undertaken in “any constituency or any part of a constituency”, not across the State, let alone countrywide. Yet there is not much optimism on this count because of Chief Justice Surya Kant’s remark that “we will not allow any impediments in SIR. This must be understood by all States.”

Aadhaar and right to privacy

The Aadhaar case is an apt example of how delay in hearing a constitutional challenge produces a fait accompli impossible to reverse. The Aadhaar scheme was first challenged in November 2012 on the ground that the collection of biometric details of citizens intruded upon their fundamental right to privacy. Through 2013 and 2014, the Supreme Court issued orders saying no person should suffer on account of not having the Aadhaar card.

Thereafter, for a year, the Aadhaar case, strangely, was not heard. Then, in August 2015, the state contended that a nine-member bench should first decide whether privacy was a fundamental right, for an eight-member bench, in a 1954 case, had ruled it wasn’t so. The court agreed, but also said the possession of the Aadhaar card could not become a precondition for citizens to access benefits due to them from the state. It confined the use of the Aadhaar to the Public Distribution System, and subsequently extended it to some other government schemes. It, however, said that enrolment for the Aadhaar scheme was voluntary.

The Supreme Court shockingly took over 600 days to constitute a nine-member bench to hear the privacy issue, aka the K.S. Puttaswamy case. In March 2016, Parliament passed the Aadhaar Act as a Money Bill. This, too, was challenged. Yet every passing week saw the expansion of services for which the Aadhaar was made necessary.

The verdict in the Puttaswamy case was delivered in August 2017, which declared privacy as a fundamental right even though citizens had already been lassoed into providing their biometric details. It was consequently academic that the Aadhaar Act was upheld on September 26, 2018. The card had already become so inextricably entangled with every citizen’s life that the Supreme Court could not possibly have, even if it had wanted, to disentangle her/him from it.

Demonetisation and CAA

Likewise, the inimical impact of the demonetisation of Rs.500 and Rs.1,000 currency notes, announced on November 8, 2016, was long over before its constitutionality was upheld over six years later, in January 2023. The case of the constitutionality of the Citizenship Amendment Act, 2019, will come up in May, more than six years after it was challenged. Will the Supreme Court strike down the Act, given that the government claims that thousands have been granted citizenship under it?

Before the verdict against Trump’s tariff, SCOTUS was criticised for being ideologically inclined towards him, largely because six of its nine judges had been appointed by Republican Presidents, including three of them by him. Yet, in at least three cases, some of these judges joined the three brought to the court by Democrat Presidents to rule against the Trump administration.

Our Supreme Court judges are supposed to be politically neutral, but do not deliver majority verdicts against the Central government. In a rare instance, the Supreme Court annulled the Modi government’s electoral bond scheme, notified in January 2018. Yet the six years it took to deliver its verdict, in February 2024, proved advantageous to the ruling BJP, which had, by then, received roughly 50 per cent of the Rs.16,518 crore donated through bonds purchased from the State Bank of India. After Modi once again became the Prime Minister following the 2024 Lok Sabha election, the Supreme Court dismissed petitions demanding an investigation whether donations through electoral bonds involved a quid pro quo.

One can go on listing instances of the Supreme Court shying away from scrutinising the constitutionality of the Modi government’s actions and laws. But even more worrying is its palpable reluctance to grant bail to those dubbed dissenters, such as Sonam Wangchuk, Surendra Gadling, Umar Khalid, and Sharjeel Imam. Regardless of its own self-definition, the Supreme Court simply pales before SCOTUS.

Ajaz Ashraf is a senior journalist from Delhi and the author of Bhima Koregaon: Challenging Caste.

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