A rogue federal court has spent years harassing a prominent civil rights advocate.
For more than four years, a rogue federal appeals court has given life to a highly dubious lawsuit targeting DeRay Mckesson, a prominent figure within the Black Lives Matter movement. The United States Court of Appeals for the Fifth Circuit’s decisions would not only strip Mckesson of his First Amendment-protected right to organize mass protests against police violence, it threatens all Americans’ ability to organize any protest.
On Friday, the Fifth Circuit handed down its latest decision in Doe v. Mckesson, the case at the heart of this crusade against the First Amendment. Under the Fifth Circuit’s latest approach, a protest organizer who commits even a minor legal violation — in this case the court faulted Mckesson for leading a protest “in front of the Baton Rouge police station” and for attempting “to block a public highway” — may potentially be held liable for the illegal actions of someone else who attended the protest.
In 2016, Mckesson helped organize and lead a protest near the Baton Rogue Police Department building, following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at the plaintiff in the Mckesson case, a police officer identified in court documents by the pseudonym “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, experienced “injuries to his teeth, jaw, brain, and head, along with other compensable losses.”
There is no question that whoever threw this object should be held liable for their illegal action. But even Judge Jennifer Elrod, the author of the latest Mckesson opinion, admits that “it is clear that Mckesson did not throw the heavy object that injured Doe.” That should be the end of this case, as the First Amendment provides robust safeguards against holding protest leaders responsible for the actions of a single rogue protester.
Instead, Elrod devises a tortured legal theory that effectively allows Doe to sue Mckesson for the actions of the unknown assailant. In doing so, Elrod rather flagrantly disobeys at least two landmark Supreme Court decisions.
Elrod’s opinion explicitly defies the Supreme Court’s decision in NAACP v. Claiborne Hardware (1982), which held that, barring unusual circumstances that are not present in the Mckesson case, “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.” Additionally, her opinion cannot be squared with Brandenburg v. Ohio (1969), which placed strict limits on the law’s power to sanction anyone whose speech might encourage others to engage in illegal activity.
The stakes in this case, which has already been heard once by the Supreme Court and will most likely need to be heard by them again if the right to protest is to remain viable, are simply enormous. If protest organizers can be sanctioned for illegal actions by protest attendees, then no one in their right mind will agree to organize a protest.
Indeed, as Judge Don Willett points out in dissent, under Elrod’s decision, a protest leader could potentially be forced to pay for “the unlawful acts of counter-protesters and agitators” who are actively opposed to the protest leader’s cause. If Elrod is right about the First Amendment, then a white supremacist who wishes to cripple the Black Lives Matter movement needs only show up at one of their protests and start throwing stones.
And this case is particularly important because it concerns the right to protest the police — individuals who are authorized by the government to commit violence on behalf of the state. If the right to protest means anything, it must include the right to demonstrate against government officials who wield such awesome power against ordinary citizens, including protesters themselves.
The three words that must always be protected, if free speech is to survive, are “fuck the police.”
The First Amendment rights of protest leaders, briefly explained
The question of whether protest organizers and political leaders may be held liable for the actions of fellow protesters is not new, and the Supreme Court has been quite clear that the First Amendment provides robust protection to such organizers and leaders. Indeed, the Court’s decision in Claiborne involves facts that are strikingly similar to the ones alleged by Officer Doe.
Claiborne concerned a boycott of white businesses led by a Mississippi chapter of the NAACP. At least according to the Mississippi Supreme Court, some individuals participating in this boycott “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses.
Indeed, the leaders of this boycott did far more to encourage violence than Mckesson is now accused of doing. Charles Evers, a prominent figure within the NAACP, gave a series of speeches supporting the boycott, and he allegedly said in one of these speeches that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”
Nevertheless, the Supreme Court held in Claiborne that this “emotionally charged rhetoric … did not transcend the bounds of protected speech.”
More broadly, Claiborne emphasized that courts must exercise “extreme care” before imposing liability on a political figure of any kind. In rare cases, a protest leader may be held liable for someone else’s violent actions, but one of three circumstances must exist:
There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.
None of these circumstances are present in Mckesson. There is no allegation that Mckesson directed anyone to hurl a rock at a police officer, or that he endorsed the attack on Office Doe after it occurred. Indeed, there is no allegation that Mckesson encouraged violence of any kind, or even that he engaged in the kind of “emotionally charged rhetoric” that the Supreme Court held was protected in Claiborne.
In fact, in a previous opinion in the Mckesson case, the Fifth Circuit admitted that Officer Doe “has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.”
That admission is fatal to the Fifth Circuit’s argument.
Elrod’s opinion doesn’t just violate the First Amendment, it openly defies the Supreme Court’s decision in Claiborne
Rather than obey the Claiborne decision, Elrod’s latest opinion in the Mckesson case simply pretends that Claiborne did not say what it actually said. After quoting the same paragraph that I quoted above, laying out the three limited circumstances when a protest leader may be held liable for the actions of a rank-and-file protester, Elrod writes this astonishing sentence:
Nothing in Claiborne suggests that the three theories identified above are the only proper bases for imposing tort liability on a protest leader.
That’s certainly a creative way to read a Supreme Court opinion that holds that even threats to break someone’s neck can be protected speech, which demands that courts apply “extreme care” before they sanction protest organizers, and which itemizes only three circumstances that “might justify” holding such an organizer liable for the actions of another. Elrod’s opinion cites no other court decision that reads Claiborne in such a counterintuitive way.
Having given herself the freewheeling authority to invent new exceptions to the First Amendment, Elrod then determines that the First Amendment does not apply “where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.”
And what, exactly, are the “unreasonably dangerous conditions” that Mckesson allegedly created? Elrod points to allegations that Mckesson “organized the protest to begin in front of the police station, obstructing access to the building” that he did not “dissuade” a group of protesters who allegedly stole water bottles from a grocery store, and that he “led the assembled protest onto a public highway, in violation of Louisiana criminal law.”
Elrod, in other words, seems to believe that it is “unreasonably dangerous” to protest government officials near the public building where those officials work. And she also appears to believe that the First Amendment begins to ebb the minute a protest leader violates a traffic law.
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Morton Broffman/Getty Images
Elsewhere in her opinion, Elrod also suggests that Mckesson may run afoul of Claiborne’s holding that a protest leader may be held liable if their “public speeches were likely to incite lawless action.”
But Elrod does not point to a single statement, allegedly made by Mckesson, which might have incited someone to injure Officer Doe. Nor, for that matter, does Doe. As Judge Willett points out in dissent, “the lone ‘inciteful’ speech quoted in Doe’s complaint is something Mckesson said not to a fired-up protestor but to a mic’ed-up reporter — the day after the protest: ‘The police want protestors to be too afraid to protest.’”
Needless to say, this anodyne statement does not even begin to approach the kind of incitement to lawlessness that is unprotected by the First Amendment.
The Fifth Circuit is a rogue court
The Fifth Circuit’s decision in Mckesson isn’t just wrong. It is an embarrassment. But it is also typical of the Fifth Circuit, which is dominated by Trump appointees and other judges on the far right fringe of the legal profession.
In the last few years, the Fifth Circuit declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. It seized control over much of the United States’ diplomatic relations with the nation of Mexico. It effectively tried to ban the drug mifepristone, a pill used in more than half of all US abortions, which has been legal in the United States for nearly a quarter century. And it even tried to put right-wing judges in charge of the military, handing down a decision, that, in Justice Brett Kavanaugh’s words, inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
Indeed, the Fifth Circuit’s decisions are so often divorced from any recognizable legal principles that it is fairly often reversed from the left by our current, very conservative Supreme Court.
Indeed, in 2020, the Supreme Court handed down a brief decision in the Mckesson case that seemed intended to quietly make this case go away. That decision, however, did not rule on whether Mckesson’s actions are protected by the First Amendment. Instead, it effectively asked the Louisiana Supreme Court to weigh in on whether Mckesson actually violated any Louisiana state laws when he organized the Baton Rogue protest — because if he did not violate any laws, then there’s no reason to determine whether the First Amendment permits him to break the law.
But the Louisiana Supreme Court did not take this opportunity to shut this lawsuit down, instead ruling that, “it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety)” violated Louisiana law.
In any event, Mckesson is not being sued for blocking a highway. He is being sued for an unknown assailant’s attack on Officer Doe. And Claiborne could not be clearer that the First Amendment does not allow Mckesson to be held responsible for this unknown individual’s inexcusable act of violence.
It is now, in other words, up to the Supreme Court to do what it was unwilling to do in 2020. It must hear the First Amendment dispute at the heart of Mckesson. And, if the right to protest means anything, it must reverse the Fifth Circuit.
A strategic friendship, with the US caught between.
Fifty years ago, President Richard Nixon traveled to China as a way to weaken the Soviet Union and keep the two countries from getting too close.
Now America is grappling with a new Cold War in which Russia and China have developed an increasingly strong partnership, which has alarmed the Biden administration.
The US sees itself as competing with both countries in different ways.
Washington is backing Ukraine with massive dollars and weapons in the face of a destructive Russian invasion. But the foreign policy elite of Washington is perhaps even more concerned about the rise of China as a global power that can counter the US. War between the US and China is not inevitable, but tensions between the countries are so high that Moscow’s friendship with Beijing has become a new challenge for Washington.
But just how tightly bound are Russia and China?
Analysts told me that both China and Russia see themselves in an existential conflict with the United States. It’s led to a partnership with military, diplomatic, and economic dimensions. And because Russia and China are both closed and autocratic, we don’t know the full extent or how deep it extends beyond the friendship of the two leaders, Xi Jinping and Vladimir Putin, who have rendezvoused 40 times in the past decade.
Patricia Kim, a researcher at the Brookings Institution, has closely tracked the partnership between the two countries. “The fact that China is engaging comprehensively with Russia is what’s notable. And this has come at a big diplomatic cost for Beijing for its global image,” she told me. “It just shows how much that China values Russia as a strategic partner.”
Is it a “no limits” partnership? Is Russia the “junior partner” to China? Their relationship, explained.
Three weeks before Russia invaded Ukraine, Putin traveled to Beijing for the Olympics. He and Xi released a joint statement publicizing a “no limits” friendship, which showed how close the two countries had become. When the two leaders met again this spring, that turn of phrase did not appear in their communique, and Chinese diplomats have minimized the relationship, partly in an effort to maintain its ties with Europe.
Still, the friendship has continued. “China is not going to abandon Russia,” says Yun Sun, director of the China Program at the Stimson Center, “but that’s very different than the no-limit partnership.”
In February, Secretary of State Antony Blinken warned China about the risks of actively arming and supporting Russia in Ukraine. China has so far denied that it has sent Russia any weapons, but Ukraine notes that Chinese components have been discovered in confiscated Russian materiel.
With Russia hit with wide-ranging international sanctions, it has turned to the world’s second-largest economy, China. “The economic relationship between the two has become definitely closer compared to before the war in Ukraine started,” says Sun.
Trade between the two countries reached $93.8 billion for the first half of this year, which is about a 40 percent rise from last year. In particular, semiconductors are a prized Chinese export, as “integrated-circuit shipments to Russia were valued at $179 million in 2022 —against just $74 million in 2021,” according to the Wall Street Journal.
The trade is lopsided. Russia made up only 2 percent of China’s exports last year, but each country wants something from the other. “What China wants from Russia is energy and military technology — and something to distract America, of course,” says Ivan Kanapathy, an analyst at the CSIS think tank.
A lot of the strategic interests of China and Russia may align for now, but of course that doesn’t mean everything aligns. The limits of Chinese support for Russia’s war in Ukraine reveal one difference. Another is that Russia remains a close partner (and seller of weapons) to India, while China views India as a rival. And China and Russia assert their power in the world rather differently.
A narrative that has emerged in recent years is that of Russia as the junior partner to China. Trump administration officials used the junior partner framing in their speeches as a way to slight both countries, according to Kanapathy, who served on the National Security Council from 2018 to 2021. “China did not want to be looked at as the more dominant partner for its own reasons — like its claim of developing country status,” he told me. “And we knew Russia would hate the implication, mainly just out of pride. So characterizing them that way was a means to create friction in that relationship.”
In some ways, economically and in terms of its growing global isolation, Russia could be cast as a junior partner. But Alexander Gabuev, director of the Carnegie Russia Eurasia Center, says it’s better to think of each country as a powerful force, independently able to drive events. China finds ways to benefit from what Russia does, when it can.
“Russian foreign policy is a typhoon; it’s a natural disaster. You cannot control it. You can adapt to it and then use some of the fallouts to your advantage. Like put the wind farms at the edge of this typhoon and use them to generate electricity,” he explained on the Sinica Podcast. Above all, this is about Chinese pragmatism. “There is a shared alignment of many interests, and that’s growing,” Gabuev told me.
But beyond the support each country provides to the other, there is a deeper connection between Russia and China.
The bigger issue may be that a US-dominated global economy and the military primacy of Washington as global police officer does indeed pose a bigger threat to China and Russia than has been forthrightly acknowledged.
Much of this predates the Biden administration.
It goes back to the war on terrorism, when President George W. Bush’s approach to the world was regime change. “The United States adopts this policy in Iraq and Afghanistan, and it’s one that nobody really knows the limits, of a prerogative to engage in forcible regime change and militarized democracy promotion,” said Daniel Nexon, a professor at Georgetown University. Russia accused the US of plotting color revolutions in former Soviet states, which the US denies.
Similarly, President Barack Obama’s support for the popular uprisings that overthrew autocrats in the Middle East in 2011 — and later interventions in Libya and Syria — rattled the Chinese leadership. “There is a notion that the US is just kind of hostile to their regimes,” Nexon told me. “Probably because of the sense that the United States fundamentally just doesn’t consider the regime legitimate. And it’s going to do things that are a threat to the regime.”
The US sees its role as driven by good intentions.
“One of the important things for me to do on this trip was to disabuse our Chinese hosts of the notion that we are seeking to economically contain them,” Blinken told reporters while visiting Beijing this week. “So I spent some time making sure that we were very clear about what we’re doing as well as what we’re not doing.”
As Blinken put it, the Biden administration’s priority has been “upholding and updating” the rules-based order. It’s a term they regularly use to describe the equilibrium the US seeks in the world, but many other countries — not just China and Russia — hear hypocrisy.
“It sounds really good to us and our closest allies,” Kanapathy told me. “But the closest allies are already on board, so it doesn’t matter. Everybody else in the world isn’t buying it. They see the United States as writing, bending, and choosing the rules to help itself.”
What this means for the US’s relationships around the world
US foreign policy today is almost entirely seen through the prism of conflict with China. The rash conversations happening around how Washington should react to Beijing — its spy balloons becoming a Sputnik moment, for example — seem to be setting up the US for a situation of war rather than rational debates on how to solve global crises. Countering China cannot be the driving force of the US role in the world.
This also ties into the broader West versus non-West question over Ukraine. Many middle powers and large countries don’t want to pick a side.
Kim, of the Brookings Institution, has written that US policymakers need to ruminate on “why Chinese and Russian accusations of Western hypocrisy and hegemony resonate in many parts of the world and to how they might address these grievances.”
“They see each other as vital partners in essentially eroding what they see as a Western-dominated global order,” she told me. But the trust that Russia has in China could also serve as a check on its power, especially as Russia’s war on Ukraine continues. “There’s a recognition that China could potentially play a more constructive role.”
Narendra Modi’s war on India’s democracy, explained.
This week, President Joe Biden will host Indian Prime Minister Narendra Modi for a state dinner — only the third foreign leader to receive such an honor at the Biden White House, the other two being the presidents of France and South Korea. They have a lot to talk about: A White House statement on the meeting has a long list of discussion topics, including climate change and security in the Indo-Pacific region (read: countering China).
But there’s a word missing from the agenda that is, arguably, the most important of all: democracy.
Since Modi took office in 2014, and especially after winning reelection in 2019, he has systematically taken a hammer to the core institutions of Indian democracy. The prime minister’s government has undermined the independence of the election supervision authority, manipulated judges into ruling in his favor, used law enforcement against his enemies, and increased its control over the Indian press.
The prime minister’s anti-democratic behavior has accelerated over time. In the past year alone, Modi’s government has:
- Expelled the leader of the opposition party, Rahul Gandhi, from parliament after he was sentenced to two years of prison for allegedly defaming the prime minister with a joke.
- Taken over one of the few remaining independent television stations through a crooked billionaire ally.
- Created an official panel empowered to take down social media posts critical of the government.
- Sent tax officials to raid the BBC’s offices in New Delhi and Mumbai, a move widely seen as retaliation for a documentary critical of Modi.
Being in power has become self-reinforcing for Modi. His Bharatiya Janata Party (BJP) has used its electoral dominance to silence critics and stack the electoral deck against his opponents, making the upcoming 2024 parliamentary election a significant uphill climb for other parties. That vote is shaping up to be critical for India’s democratic future.
“With every major election loss, the window might be closing” for the opposition, warns Pavithra Suryanarayan, a political scientist at the London School of Economics.
This assault on democracy is a deeply ideological project. The BJP is the electoral offshoot of the Rashtriya Swayamsevak Sangh (RSS), a radical Hindu nationalist organization to which Modi has belonged since he was 8 years old. Christophe Jaffrelot, a leading India scholar at France’s Sciences Po, told me that its ideology amounts to “an Indian version of fascism.”
You would think that a pseudo-fascist assault on democracy in the world’s largest country (by population) would merit an international outcry — certainly as much as the attention given to other prominent democratic backsliders like Hungary. But perhaps because of India’s geopolitical significance, criticism from the world’s leading democracies has been largely muted — left off the agenda as Washington and its Pacific allies court New Delhi in their effort to balance a rising China.
“There’s been a conscious policy decision to downplay Indian democratic backsliding because it’s awkward,” says Sadanand Dhume, a senior fellow at the center-right American Enterprise Institute. “We need India as a potential bulwark against China, and the Indians have been very skillful in exploiting the tendency in Washington toward tunnel vision.”
In 2005, Narendra Modi was banned from traveling to the United States on allegations of complicity in an anti-Muslim pogrom. Now he’s the White House’s guest of honor — while, at his direction, a country poised to be one of the greatest powers of the 21st century slides toward tyranny.
The ideological roots of India’s democratic decline
To understand the current crisis of Indian democracy, you need to understand the BJP’s roots in the RSS — an organization that, in many ways, functioned as an opposing force to Gandhi’s pro-independence Indian National Congress. Unlike the Congress, which believed in secular liberal democracy, the RSS advocated for a future Indian nation defined in purely ethno-religious terms — a “Hindu Rashtra” (Hindu nation). Its ideology, called Hindutva, held that post-colonial India should be a country ruled by and for Hindus.
In 1939, RSS leader M.S. Golwalkar published a book — titled We, or our Nationhood Defined — that codified this thinking in especially stark terms.
“The foreign races in Hindusthan … must lose their separate existence to merge in the Hindu race, or may stay in the country, wholly subordinated to the Hindu Nation, claiming nothing, deserving no privileges, far less any preferential treatment — not even citizen’s rights,” he argued.
In another passage of We, a book one contemporary observer referred to as the RSS’s “Bible,” Golwalkar explicitly praises the Nazi treatment of Jews as a model.
“Germany has also shown how well-nigh impossible it is for Races and cultures, having differences going to the root, to be assimilated into one united whole, a good lesson for us in Hindusthan to learn and profit by,” he writes.
Such ideas were marginal in post-independence India. The country’s 1949 constitution was written on secular-egalitarian lines, declaring that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
The RSS, meanwhile, had mostly managed to discredit its political vision. In 1948, an RSS devotee named Nathuram Godse assassinated Mahatma Gandhi — a killing that Godse himself credited to his Hindu nationalist ideology. The Indian government subsequently banned the RSS for a year.
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Mondadori via Getty Images
Even after the RSS’s return from the shadows, the Congress party and its secular ideology remained dominant. Until 1977, Congress won every Indian election; the RSS’s political arm, called the BJS, never reached 10 percent of the national popular vote.
The rise of the BJP, explained
The BJP, founded in 1980 as a second attempt at an RSS electoral wing, initially found success by campaigning in the mid-to-late 1980s for the demolition of a mosque in the city of Ayodhya — one located on a site that many Hindus believed to be the birthplace of the Hindu holy figure Rama, the seventh avatar of the god Vishnu.
The issue, BJP leadership believed, could be used to inflame politically useful Hindu nationalist sentiment by making it seem as if the current Indian system prioritized the interests of the Muslim minority over the Hindu majority.
This divisive campaign worked. In the 1984 election, the BJP won two seats in Parliament; in 1989, it won 85 (out of a total of 543).
But when the BJP managed to form its first-ever coalition government, in 1998, it ruled in a relatively moderate fashion. This perhaps surprising result, according to Brown University’s Ashutosh Varshney, reflected what was thought at the time to be an iron law of Indian politics: that no matter which party was in power, it would have to moderate its ideological agenda.
There were two reasons, according to Varshney, for this so-called “persistent centrism.“
First, India is staggeringly diverse: It has 22 official languages, 705 officially recognized ethnic groups, six large religious minorities, and a complex caste system that divides the population into thousands of different groups. Putting together a winning coalition in such a deeply divided society seemed to necessarily require compromise.
Second, the Indian political system places multiple checks on the ability of governing coalitions to make major changes. A set of institutions — the court system, independent agencies, oversight bodies, a vibrant free press — force governments to play within certain legal and normative limits. Thus, even the most hardline BJP government would find itself unable to take radical action to change the nature of the Indian state.
And make no mistake: much of the BJP leadership cadre remained dedicated to Hindutva ideals. While the RSS formally repudiated Golwalkar’s writing in 2006, this seemed more like a branding exercise than anything else. His basic idea of a Hindu Rashtra remains at the center of BJP-RSS ideology.
“The ideology has not changed,” Jaffrelot says. “They [really] believe in … the sense of superiority of the Hindu people, in this dehumanization of the other.”
Narendra Modi is chief among these true believers.
In 2002, when he was serving as chief minister of the state of Gujarat, a train carrying Hindu pilgrims in Godhra, a Muslim-dominated part of the state, went up in flames, killing 59 people. The fire was blamed on Muslims, setting off mass communal rioting, primarily pogroms by Hindu mobs against the Muslim minority. (An Indian government investigation later concluded that the fire had been an accident.) Human rights groups put the total death toll at more than 2,000. The raw brutality of the assault was chilling. Amnesty International reports that between 250 and 330 Muslim girls and women were raped and tortured during the violence; most of them were subsequently executed by the mob.
Modi allegedly intervened personally on the side of these anti-Muslim rioters, ordering police to stand aside and allow Hindu mobs to rampage across Muslim-majority areas. Modi’s behavior was so egregious that, in 2005, the US denied him an entry visa on grounds of “severe violations of religious freedom.” This ban would only be lifted after the BJP won India’s parliamentary election in 2014, an election where the charismatic Modi defeated an increasingly ineffectual and corrupt Congress led by dynast Rahul Gandhi.
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Sebastian D’Souza/AFP via Getty Images
After becoming prime minister, Modi faced a fundamental challenge: How to implement his hardline Hindutva social agenda given the constraints militating toward persistent centrism?
The answer was … to eliminate those constraints. And his plan of attack would strike at the heart of Indian democracy.
Modi has undermined Indian secularism — and its democracy
The easiest way to understand what Modi has done to India is to see it as kind of a mutually reinforcing cycle of two different agendas.
The first is using the powers of the premiership to spread Hindutva ideology and polarize the electorate along Hindu-versus-Muslim lines. The second is consolidating power in his hands and weakening countervailing authorities — including the judiciary, oversight commissions, the free press, and opposition parties.
The more the Hindu public is converted to his ideology, the more popular Modi becomes, providing him political cover to pursue attacks on judges, bureaucrats, and reporters. The more he controls India’s government and the press, the easier it is for him to spread Hindutva propaganda.
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Ritesh Shukla/Getty Images
This effect of this cycle has been both the shattering of the “persistent centrism” that constrained previous leaders and, increasingly, elections taking place on a playing field tilted against the opposition.
Prior to Modi’s rise, the BJP’s electoral success was limited by an elite base that supported the party’s economic reforms and social agenda. Many upper-caste Indians cared deeply about blocking a long-running effort to expand India’s caste-based affirmative action program for university admissions and government jobs, seeing the BJP as a party that would oppose this and other efforts to undermine the caste hierarchy.
Under Modi, the party has managed to significantly expand its demographic base among both lower-caste and poor Hindus (two groups that overlap to some degree but not fully) without losing its base. By 2019, poor Hindu voters were as likely as rich ones to vote for the BJP.
The party’s success at selling its Hindutva narrative since Modi’s ascension is not the only part of this story, but it has been an essential one. Modi and state-level BJP leaders have relentlessly hammered Hindutva themes in their speeches and pursued policies undermining Muslim rights and inflaming Hindu anxieties about their Muslim neighbors.
“All the big achievements of the BJP thus far are ideological ones,” says Suryanarayan. “The Citizenship Amendment Act, the revocation of special status to Kashmir, the way in which they are very carefully transforming textbooks and textbook representations of what the founding fathers of India were about and the role of Muslims in Indian history — every one of these is clues to what commitments of the BJP are.”
(The Citizenship Amendment Act creates a special pathway to citizenship for non-Muslims living in nearby countries. Meanwhile, Jammu and Kashmir is India’s only majority-Muslim state and the subject of a territorial dispute with Pakistan; it enjoyed a special autonomous status until Modi revoked it in 2019.)
In effect, the BJP has used the power of the state to convince Hindus that what unites them against Muslims is more important than what divides them among each other.
One especially egregious example is the so-called “love jihad,” a conspiracy theory that Muslim men are seeking to marry Hindu women as part of an organized plot to convert them to Islam and erode India’s Hindu majority — a pernicious myth that has led to the arrest of Muslim men. Modi and other BJP officials have even promoted a film spreading this idea.
Research suggests these anti-Muslim efforts have deeply affected public attitudes and, even more ominously, behavior. A 2022 paper by Varshney shows a spike in lynchings of Muslims that coincides almost exactly with Modi taking power.
“Lynchings cannot become widespread without an atmosphere of impunity in which those who have a mind to commit lynchings know that they are unlikely to be punished by the state,” Varshney writes.
Stoking anti-Muslim sentiment has been politically profitable. Modi’s approval ratings have been quite high in recent years, most recently clocking in around 75 percent — a level of support that experts say is bound up with his ability to use the politics of fear to consolidate support among Hindus.
“In different sectors of society, in all kinds of provinces across the country, [Muslims’] image has been so badly portrayed. That is the main impact [the BJP] has made,” Jaffrelot says. “They have demolished something that will be very difficult to rebuild, and that is secularism.”
Modi’s multi-pronged attack on Indian democracy, explained
There’s no doubt that Modi’s agenda is illiberal, in the sense that it involves asserting the legal and social dominance of the Hindu at the expense of Muslims and other minorities. Modi insists that he is merely acting on behalf of the majority — that he and his government are honoring India’s historic status as “the mother of democracy.”
His long record of anti-democratic policy says otherwise.
Some of Modi’s tactics involve clever legislation. Take campaign finance: Under Modi, Parliament set up a new system that allows for unlimited donations through the purchasing of electoral bonds — a system that all but announces to wealthy donors that the government knows which party you gave money to.
Another tactic has been the manipulation of appointment powers. Modi has seized control over the judicial “collegium” system of appointments, simply refusing to appoint judges he doesn’t approve of. Similarly, Modi has refused to appoint commissioners to the Central Information Commission, which handles freedom of information requests from the public, grinding its work to a halt.
A third set of tactics has been outright intimidation and abuse of legal powers. India’s Central Bureau of Investigation (CBI), the country’s FBI equivalent, has a longstanding problem of being unduly influenced by political considerations — a problem that has gotten far worse since 2014. Under the prior Congress government, 60 percent of CBI investigations into politicians targeted opposition leaders. Under Modi, that figure has jumped to 95 percent.
The recent state-level conviction of Congress leader Rahul Gandhi and his subsequent expulsion from Parliament speak to the way that both law enforcement and the legal system have been politicized across the board.
Tax enforcement plays a similar role. When a leader of the independent Election Commission voted to penalize Modi for hate speech on the campaign trail in 2019, he swiftly came under tax investigations — as did his sister, wife, and son. This year, the tax police raided the BBC’s India offices after the broadcaster had released a documentary on Modi’s role in the 2002 Gujarat riots.
The BBC raid speaks to yet another area of democratic backsliding: a clampdown on the independent press and freedom of speech more broadly through new rules, like the creation of an agency empowered to take down social media posts, and harassment of journalists and human rights organizations. But it has also happened more subtly, through consolidation of media ownership in the hands of ultra-rich moguls friendly to Modi and the BJP like Gautam Adani and Mukesh Ambani.
The weaker checks on Modi’s authority get, the more he is empowered to infuse the Indian state with Hindu nationalist ideals — and the harder it will be for the divided Indian opposition to unseat the BJP through electoral means.
Can Indian democracy be saved?
This is not the first time India’s democracy has been in crisis.
In June 1975, in the midst of an episode of civil unrest, Congress Prime Minister Indira Gandhi — a charismatic populist not entirely dissimilar from Modi — announced the beginning of a so-called “Emergency,” which in effect suspended basic rights and freedoms.
For nearly two years, the Indian state was a functional autocracy. News outlets were placed under a strict censorship regime; police rounded up Gandhi’s political opponents, including RSS leaders, and imprisoned them.
In March 1977, the Emergency suddenly ended. Indira Gandhi announced new elections, which Congress lost. She left power voluntarily (only to return after the next round of elections), and Indian democracy moved away from a system dominated by the Congress party to a healthier multi-party system.
Does this provide reason for optimism that Modi might fall in a similarly surprising fashion? The experts I spoke with were skeptical.
While the Emergency was a blatant suspension of democracy in response to immediate events, Modi’s power grabs have involved a more subtle and durable corruption of institutions unfolding over the course of years.
“The way that they control information … the way they can amass funding — part of that, of course, is by changing funding laws — is pretty impressive,” says Milan Vaishnav, the director of the South Asia program at the Carnegie Endowment for International Peace.
However grim an unfavorable comparison to the Emergency might make the situation appear, it is also important to note that Indian democracy is not dead yet. There are upcoming scheduled elections in 2024, and there is a chance — unlikely, but a real one — that Modi may go the way of Donald Trump and Brazil’s Jair Bolsonaro.
That the BJP can still lose elections has been demonstrated by recent state-level defeats, like in the fiercely contested 2021 West Bengal election. India’s federal system means that state governments have a reasonable amount of power.
And even at the national level, opposition parties still retain some capacity to get their message out.
Between September 2022 and January 2023, Rahul Gandhi embarked on a pilgrimage — called the Bharat Jodo (“Unite India”) Yatra — across 2,200 miles of Indian territory. The demonstration, which evoked a tradition of political yatras in India, was designed as an explicit act of protest against Modi’s politics of division. It seems to have done real work in rehabilitating Gandhi and Congress in general.
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Abhishek Chinnappa/Getty Images
“He acquired charisma because of his lifestyle [on the march] and the way he related to people. … In a society where the stigma of caste is so strong, he had no problem shaking hands with any of the people passing by,” says Jaffrelot.
For all of these reasons, the 2024 national elections are shaping up to be absolutely critical for India’s future — not that you can tell from the US government’s public response.
In October 2021, President Biden declared that “defending human rights and demonstrating that democracies deliver for their people” is “at the center of my administration’s foreign policy.” This has not been the case when it comes to its India policy, which has focused overwhelmingly on courting the Modi government as an ally against China rather than challenging its anti-democratic practices.
“I don’t detect any willingness, any serious efforts, on the part of this administration to hold India to a higher democratic standard,” Vaishnav says.
A White House spokesperson suggested to me that this is something that top American officials bring up in high-level meetings, presumably privately. “In these engagements we address policy differences constructively and in an atmosphere of mutual respect,” the spokesperson said.
One should hope so. A slide toward Hindu nationalist authoritarianism in India doesn’t serve America’s interests, especially given the ever-present risk of conflict with nuclear-armed Pakistan. And the contradiction between the administration’s soaring rhetoric about democracy and its relative quiet about the world’s most important instance of democratic backsliding is glaring.
There are some actions the administration could take that could matter at the margins — at the very least, by suggesting during the upcoming state dinner and future engagements that there might be some cost if Modi takes things too far.
But at the same time, the United States’s ability to change the course of Indian domestic politics should not be overstated. What happens in India will ultimately be determined by what Indians decide to do in 2024 and beyond — choices that, given India’s size and rising influence, will have profound consequences for the future of democracy around the world.
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