The shoe thrown at the Chief Justice of India in the Supreme Court by a Hindu lawyer reiterates the fragility with which constitutional structures in India sit atop a social structure that remains governed by the norms of a caste-based Hindu society. The lawyer, 71-year-old Rakesh Kishore, who was heard remarking “India won’t tolerate insults to Sanatana Dharma” as he was led away has since been given an extraordinary platform by usually government friendly news agencies to expound his views. These interviews have been enlightening. In them, the undertones of Kishore’s dislike for Justice Gavai, only the second Dalit judge to become Chief Justice of India, and the first Dalit Buddhist to occupy that post, are clear. He balks at having to call him “my lord” and even presumes to lecture Justice Gavai on the appropriate level of politeness with which he should have rejected the petition at the centre of the controversy, a public interest litigation that sought to override the ASI and restore a Vishnu idol in a temple at Khajuraho, a UNESCO world heritage site. Interestingly however, an unrepentant Kishore (who now claims without evidence to be Dalit himself) seems to take greater offence with the Supreme Court’s November 2024 order on bulldozers, which restrained municipalities from using demolitions as collective punishment. Justice Gavai’s recent remarks in Mauritius, where he offered the ruling as evidence that the Indian state runs on the rule of law and not the rule of the bulldozer, seem to have been particularly galling for Kishore.While the Prime Minister has condemned the attack, Indian right wing news portals, and their editors, have rallied firmly around Kishore arguing that CJI Gavai must apologize for his remarks on the Khajuraho PIL. A right-wing influencer who called for a mob attack on Justice Gavai, was arrested by the police, but immediately released after apologizing. A brief glance at right wing YouTubers and influencers point to days of blatantly casteist incitement against Justice Gavai for the remark, with respect which FIRs have now finally been filed.It is important to note that the casteism underlying the attacks on Justice Gavai operates at two levels. On the face of it, they target him for his caste identity – the videos made by right wing influencers offer ample evidence of this. But at a deeper level, it is his vision of the role of the Supreme Court reflected in the bulldozer ruling, a vision rooted in constitutional principles and rule of law, and perhaps his own Ambedkarite upbringing, that poses a serious challenge to the Hindu nationalist vision of the Supreme Court. The Constitution in the Indian polityWe often lose sight of how extraordinary the promise of the Indian Constitution is. It imposed legal equality on a newly independent society that had never operated on that basis. It is for this reason that Hindu fundamentalist organizations like the Rashtriya Swayamsevak Sangh (RSS), opposed the Constitution from the start. The RSS argued that the Constitution, with its promise of equality, was “foreign”. A truly indigenous constitution, per the RSS, would incorporate Hindu codes like the Manusmriti and presumably preserve a version of the caste and gender-based hierarchies contained in them. The drafters of the Constitution were not under any delusions about the nature of the society they were imposing constitutional values on. Speaking to the Constituent Assembly on November 25, 1949, Dr. B.R. Ambedkar remarked: “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value.”And yet, as legal historian Rohit De argues, the response of ordinary Indians to even this limited promise of equality was extraordinary. They internalised it, adopted it, and engaged with it for their rights with an enthusiasm that could not have been predicted. And the forum for that engagement became the constitutional courts. These courts provided a wedge with which the marginalised could, from time to time, break the shackles of a caste based society and seek equality. While the sheer number of writs and Special Leave Petitions (SLPs) filed in the Supreme Court today may irritate judges forced to hear them, and surprise scholars from countries where the constitutional courts are hallowed portals, rarely approached, their existence points to the fact that a great number of Indians who might have no faith in their local police or parliamentary representative still see the Constitution as their own, and the constitutional courts as their own particular forum to engage with it. This internalisation of the Constitution has meant that even Narendra Modi’s electoral juggernaut cannot seriously campaign on a platform of stripping the constitution of its essence. With respect to the 2024 elections, political analysts agree that the slogan adopted by the Bharatiya Janata Party (BJP) of “400 par”, a reference to the majority it would take in parliament to amend the Constitution, and which became seen as a threat to the Constitution, cost them their stand-alone majority in the lower house. As the Constitution itself cannot be touched without electoral losses, the political battleground for Hindu nationalists has shifted to the constitutional courts, the forum where people engage with this Constitution. Hindutva and the battle for institutionsIn India, constitutional institutions do not have to be officially dismantled for them to cease to be effective. As they are imposed top-down on a population that does not always believe in the values prescribed, they tend to evolve over time in a form that reflects the manner in which the population engages with them. For example, policing systems in India, which retain their colonial structure, rarely operate independently of the local government. The local government in turn remains beholden to dominant caste groups, on whom their re-election depends. This has meant that marginalised groups, especially groups that are under-represented in the legislature often experience the police as an extension of dominant group brutality and not as a check on it. An attack on constitutional courts therefore does not need to be announced as such. Unlike during the Emergency, the Hindutva state does not seek to bar access to the constitutional courts. It seeks instead to mould the constitutional courts to lean away from the principles of the Constitution and towards principles that align with the dominant wishes of Hindu society, or at least what the Hindutva state believes these wishes to be. In this imagination of the court, judges can still hold the executive to account on general matters such as the terming of Aadhaar as a money bill or the electoral bonds case, but are expected to shape their rulings to reflect the broader will of Hindu society on matters that are of significance to them, like Ram Janmabhoomi, the Gyanvapi Mosque case, or the even matter of Rohingya refugees. As the anti-government rulings on religiously neutral matters are widely celebrated as evidence of judicial independence, the court retains a sense of legitimacy. Further, as the role and legitimacy of the constitutional courts in India is contested in the public eye, the contestation is not limited to the text of judgements. The statements of judges, their chance remarks in court (reported on social media) and their speeches outside court all feed into the public’s engagement with the courts, and are used to shape the dominant public imagination of the courts. The bulldozer as a weapon of dominanceIn a caste-based society, the local dominant caste often uses physical violence and social ostracisation to prevent the marginalised from accessing the formal legal system. The 2006 Khairlangi massacre serves as a brutal reminder of the consequences a Dalit family can risk just to seek the equal protection of the law guaranteed in the Constitution. The rise of the Hindutva state in the last decade has meant that state institutions now back dominant power groups with even more freedom, and with less regard to the Constitution. The police in several BJP ruled states are frequently seen accompanying “cow protection vigilantes” without interfering in their violence. Often, they even pick up Muslim and Dalit survivors of the violence and charge them with the violation of cow slaughter laws. Municipal demolitions have become a standard form of state intimidation and collective punishment, especially in BJP ruled states. Multiple rights groups have highlighted the use of the bulldozer by the Indian state in recent years to silence marginalised groups. Most recently, they have been used extensively in Bareilly, which has become the epicentre of state repression against the Muslim “I Love Muhammad” religious freedom movement. The bulldozer in many ways in New India has become the chosen symbol of the power exercised by the dominant group over the rest, and the antithesis to the idea of equality before the law, and the equal protection of the law. In this context, the Supreme Court’s bulldozer ruling is one of the courts strongest theoretical challenges in recent years to the will of the dominant group. Justice Gavai by not just authoring the judgment but describing it in his speech in Mauritius as a victory of the rule of law over the “rule of bulldozers” signals quite clearly to the public as to what he believes the role of the constitutional courts should be. There is a tendency in recent legal analysis to focus on the legacy of individual judges. While these are useful, and undoubtedly fascinating, they tend to obfuscate the fact that the role of the constitutional courts in the Indian polity is not static. The Supreme Court does not float above the fray of the political discourse – it is in fact a site of contestation, in which judgements, statements and even speeches by judges dictate its evolution in the public imagination. While Justice Gavai’s legacy will be decided in the future, and will not be above criticism, his bulldozer ruling and his courtroom remarks have already offered a small but sharp counterpoint to the ideological trajectory of the court in the last decade. The shoe thrown at him is a mark of just how unpalatable that counterpoint is for the Hindutva ideology, and their vision for the courts. Sarayu Pani is a lawyer by training and posts on X @sarayupani.Missing Link is her column on the social aspects of the events that move India.