—Sarthak Gupta, Delhi-based Advocate; former Judicial Law Clerk, Supreme Court of India; and Researcher, Columbia University
When constitutional courts identify structural failures and move toward repair, the existing scholarship on the court-legislature relations operates between two poles. At one end sits compliance, the assumption underlying dialogue theory and most normative accounts of judicial review, in which legislatures genuinely absorb and act upon judicial corrections. [See, Hogg and Bushell] The dialogic model, developed primarily in the Canadian constitutional context, treats legislative response to judicial invalidation as an iterative good-faith exchange: the court identifies a constitutional deficiency, Parliament legislates in response, and the court reviews again. Its foundational assumption is that the legislature is genuinely attempting to satisfy the constitutional standard, even if it reaches a different policy outcome. [See, Gardbaum] At the other end sits defiance, the subject of a growing democratic backsliding literature, in which legislatures frontally reject or circumvent court rulings through institutional capture, jurisdiction-stripping, or simple non-compliance, as extensively documented in Hungary, Poland, and Turkey.
Between these poles lies an undertheorized middle ground, i.e., legislative responses that formally acknowledge judicial correction while reconstructing the invalidated mechanism in equivalent or structurally worse form. I label and theorize that middle ground as legislative repair circumvention, and argue that India’s Supreme Court has encountered it, in rapid succession, across three of the most consequential constitutional questions of the past few years.
A Theory of Legislative Repair Circumvention
Legislative repair circumvention describes a legislative response to judicial constitutional correction that satisfies the formal requirements of the judicial ruling, removing or modifying the challenged provision, while reconstructing the invalidated mechanism through a new legislative instrument, regulatory measure, or pattern of institutional inaction. The concept requires careful distinction from adjacent categories.
It is not non-compliance: the legislature does respond, and the challenged provision is formally addressed. It is not constitutional dialogue in the Hogg-Bushell sense, which assumes good-faith legislative engagement with the constitutional standard the court identified; repair circumvention mimics the form of dialogue while subverting its substance. [See, Dixon] Nor is it constitutional hardball as theorized by Tushnet, the use of constitutionally permissible moves for anti-constitutional ends, which is broader and less institutionally specific. Because hardball describes a general political practice, however, repair circumvention describes a targeted legislative response to a specific judicial act, one that is formally compliant precisely in order to be substantively evasive.
What distinguishes repair circumvention is the simultaneous presence of formal acknowledgment and substantive evasion. Parliament does not ignore the court. It engages with the ruling, accepts its formal terms, and then exploits its superior institutional advantages, speed, drafting opacity, democratic legitimacy, and what I call mootness exploitation to render the judicial correction structurally ineffective over time. [See, Huq and Ginsburg]
Three sub-types emerge from the Indian experience, each defined by a distinct structural logic. Substitutive circumvention involves replacing the challenged provision with new legislation that reconstructs the same constitutional effect through different language, often adopting the precise vocabulary the court used to invalidate the original as surface camouflage, a technique I call ‘doctrinal relabeling.’ Passive circumvention operates through absence rather than replacement: the court invalidates a mechanism, Parliament declines to reform the underlying architecture, and the practical effect is preserved through existing alternative structures whose combined operation achieves the same constitutional harm without offering a single identifiable target for fresh challenge. [See here] Occupational circumvention, the most structurally significant, occurs when the court identifies a constitutional gap and invites Parliament to legislate, and Parliament uses that invitation to entrench a position worse than the one the court found inadequate. [See here] The court’s own dialogic practice becomes the instrument of institutional capture.
(i) Substitutive Circumvention and Mootness Exploitation
The constitutionality of sedition law is the perfect example of substitutive circumvention, made more acute by a specific technique I have above referred to as mootness exploitation. Section 124A of the Indian Penal Code, a colonial-era provision criminalizing acts that “excite disaffection towards the Government”, had been narrowed by the Supreme Court in Kedar Nath Singh v. State of Bihar (1962) to require incitement to violence or tendency to create public disorder. [See, timeline here] In practice, it was routinely applied far beyond these limits. The arrests of journalists for social media posts criticizing state governments prompted a cluster of petitions challenging its constitutionality. On 11 May 2022, the Supreme Court took the exceptional step of suspending the operation of Section 124A entirely, freezing all pending proceedings, and directing that no new criminal complaints be registered while the Union reconsidered the provision. The Court further referred the constitutional questions to a larger bench.
Parliament’s response was elegant in its evasiveness. While the Union did agree to reconsider the provision before the Supreme Court, the Parliament repealed the existing century-old criminal law and, in its entirety, including Section 124A, and introduced a new criminal code, the Bharatiya Nyaya Sanhita 2023. Sedition law was formally removed. However, in its place, Section 152 was introduced, which criminalizes acts “endangering the sovereignty, unity and integrity of India” or exciting “secession, armed rebellion, or subversive activities.” The new provision is arguably broader than its predecessor. It does not carry the judicial gloss of Kedar Nath Singh, requiring incitement to violence, and its terms are sufficiently expansive to encompass the conduct that had generated the original constitutional challenge. This is doctrinal relabeling in its clearest form; the replacement provision does not confront the court’s constitutional reasoning; it simply renders it inapplicable by changing the legislative vessel while preserving the constitutional effect. [See, Bhatia]
Through this, three effects were achieved simultaneously. First, formal compliance, i.e., Section 124A, was removed, satisfying the surface terms of judicial concern. Second, mootness exploitation, i.e., the pending Constitution Bench reference, which had engaged the Court’s institutional resources for three years, became procedurally infructuous; there was no longer a provision to judicially review. Third, substantive reconstruction, i.e., Section 152, came into force immediately, its chilling effect operative from day one, with no suspension order and no pending reference. The constitutional clock was reset entirely. Notably, on 8 August 2025, the Supreme Court was compelled to bring Section 152 within the ambit of the constitutional challenge, confirming that the Court itself recognized the circumvention, but also illustrating its cost: years of renewed litigation, with the chilling effect intact throughout, without any stay on its operation.
(ii) Occupational Circumvention
The issue ofthe appointment process for Election Commission members is the purest case of occupational circumvention in recent Indian constitutional history, because the Court itself created the opening through which circumvention operated. Article 324 of the Constitution is silent on this appointment process. In practice, the President of India, acting on Cabinet advice, gives the executive effective control over the appointment of the body responsible for superintending free and fair elections. A five-judge Constitution Bench of the Supreme Court held that this constitutional silence was constitutionally inadequate. As an interim measure, the Court modified the practice that appointments be made on the recommendation of a committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India, and directed Parliament to legislate a permanent mechanism.
The Parliament accepted the invitation. After nine months, the Parliament passed The Chief Election Commissioner and Other Election Commissioners, Act 2023 (“2023 Act”) and created its own appointment committee comprising the Prime Minister, the Leader of the Opposition, and a Cabinet Minister nominated by the Prime Minister. The Chief Justice was replaced by a government nominee. The executive now holds two of three seats on the committee permanently.
The constitutional logic of the Court’s interim arrangement had been precisely that no single political actor should control the appointment of the body guaranteeing electoral integrity. The 2023 Act inverted that logic while complying with its form, Parliament had legislated, as directed. The space opened for democratic repair was occupied with institutional capture. This is occupational circumvention’s distinctive structural irony: the more generously the court frames its dialogic invitation, the more effectively it can be exploited. Judicial humility becomes judicial vulnerability. [See, Daly]
Speed and Democratic Reversal
India’s capital territory, the National Capital Territory of Delhi, occupies a constitutional hybrid position as a directly elected government coexists with a Lieutenant Governor appointed by the Union government, who serves as the territory’s official administrator. The relationship between these two authorities has been litigated repeatedly. In 2018, the Supreme Court had already held that the Lieutenant Governor was bound by the advice of the elected Council of Ministers on matters within Delhi’s legislative competence. The Union government responded with the GNCTD Amendment Act 2021, restoring the Lieutenant Governor’s primacy over executive decisions, which Delhi’s elected government promptly challenged.
On 11 May 2023, a five-judge Constitution Bench delivered a ruling in the Delhi government’s favor that the elected government must control civil servants in the territory. Without that power, the Bench reasoned, the democratic mandate of Delhi’s voters was rendered hollow. The Union government’s response came eight days later, an Ordinance explicitly barring the Delhi government from legislating on services regardless of what “any court” had decided, and creating a new civil services authority in which two Union appointees structurally outvoted the elected Chief Minister, with the Lieutenant Governor holding a final override. The Ordinance was subsequently enacted as legislation, permanently entrenching the position the Court had just declared unconstitutional. The speed is the conceptual point. The Court’s ruling had no opportunity to take operational effect before it was superseded. Eight days separated judicial repair from legislative replacement, a ratio that illustrates, in its starkest form, the speed asymmetry that makes repair circumvention systematically available. At the present moment, the constitutionality of the said Ordinance is pending before the Supreme Court, which will take its sweet time.
The Structural Logic of Circumvention
These three cases are not aberrations. They reflect structural asymmetries that make repair circumvention systematically available to a determined parliamentary majority. The first is the speed asymmetry. Legislatures can replace invalidated mechanisms faster than courts can review replacements, and the chilling or political effect of the challenged provision operates throughout. The second is mootness exploitation. Legislative replacement before judicial review is concluded renders pending proceedings infructuous, resetting the constitutional clock at the moment of greatest judicial institutional investment. The third is legitimacy asymmetry. Parliament can invoke its democratic mandate and electoral accountability against what it frames as counter-majoritarian judicial interference, a resource courts cannot match with constitutional text alone, particularly under conditions of executive dominance. [See, Hirschl] The fourth is drafting opacity. Sophisticated legislative drafting can reconstruct a prohibited constitutional effect through provisions that are individually defensible but cumulatively evasive, making fresh challenge harder to frame and existing doctrine harder to apply. The fifth, most paradoxically, is invitation abuse. The Court’s own dialogic practice of inviting legislative correction, itself a mark of institutional humility and respect for separation of powers, creates the structural opening through which occupational circumvention operates.
These asymmetries do not operate independently; they compound. A legislature that exploits mootness through substitutive replacement also exploits speed to ensure the replacement is operative before review begins. Drafting opacity insulates the replacement from the doctrinal framework developed for the original provision. And invitation abuse transforms the Court’s most democratically sensitive remedy, dialogic deference, into its most structurally vulnerable one. The compounding of these asymmetries is what makes repair circumvention systematic rather than opportunistic, and what distinguishes it analytically from the ordinary friction of court-legislature disagreement.
The concept of repair circumvention has implications both for constitutional doctrine and for comparative literature. Doctrinally, the Indian Supreme Court has tools it has not yet fully deployed. More detailed remedial orders, specifying not merely invalidity but the constitutional parameters replacement legislation must satisfy, would create a benchmark against which circumvention could be measured. An anti-circumvention interpretation principle, treating legislative history that acknowledges a prior ruling as probative of constitutional purpose, would make conscious circumvention judicially cognizable. The August 2025 order in the sedition case, bringing Section 152 within the existing challenge, suggests the Court is developing sensitivity to the pattern, even if it lacks a doctrinal framework to address it systematically.
For the comparative literature, repair circumvention joins a growing vocabulary for understanding the legal mechanisms of democratic erosion. Repair circumvention is to judicial remedies what autocratic legalism is to constitutional structure. It occupies the space between Scheppele’s autocratic legalism, the use of legal forms to undermine constitutional substance, and the good-faith dialogue assumed by Commonwealth constitutionalism. As Huq and Ginsburg observe, constitutional democracies erode not through single catastrophic ruptures but through the accumulation of individually defensible institutional changes. Repair circumvention is one such mechanism wherein each legislative response is formally defensible, and the cumulative pattern is constitutionally corrosive.
Conclusion
When the Supreme Court of India suspended sedition, reformed the election commission appointment process, and affirmed Delhi’s democratic mandate, it was engaging in the ordinary work of constitutional courts in democratic systems, identifying structural failures and attempting correction. What distinguishes the Indian experience is the systematic character of the legislative response: not defiance, which would be visible and politically contestable, but replacement, formally compliant, substantively evasive, and structurally designed to exploit the institutional asymmetries that leave courts permanently at a disadvantage against a determined parliamentary majority. What constitutional scholarship can do, and what I have attempted here, is to name the phenomenon with sufficient analytical precision to make it visible as a distinct constitutional pathology because, in the architecture of democratic erosion, naming it is the first condition of addressing it.
Suggested citation: Sarthak Gupta, Neither Compliance nor Defiance: Toward a Theory of Legislative Repair Circumvention, Int’l J. Const. L. Blog, Apr. 8, 2026, at: http://www.iconnectblog.com/neither-compliance-nor-defiance-toward-a-theory-of-legislative-repair-circumvention/