The suggestion that the higher judiciary is unresponsive to public sentiment has often been heard. A study of the parliamentary debates in 1951 on the First Amendment to the Constitution that, among other things, insulated the zamindari abolition legislations from judicial scrutiny, would indicate that this sentiment is also very Nehruvian. It was also heard during the high noon of Indira Gandhi’s socialist phase when there was a demand for a ‘committed judiciary’ to complement a ‘committed bureaucracy’ and ‘progressive’ politics.
The belief that the judiciary in India has transformed itself into a self-perpetuating, unelected oligarchy may have a contextual basis. However, like most political formulations that arise from the heat of the moment, it is often overstated. There may well be a handful of conservative judges who sincerely believe that the separation of powers is sacrosanct and that it is the business of the judiciary to interpret the law, probe and adjudicate the unforeseen grey areas between different laws and leave law-making to the legislature. They would hold that Article 21 of the Constitution guaranteeing citizens the right to life and personal liberty cannot be extended by judges to include the rights to healthcare, clean air, privacy and, in line with the American Declaration of Independence, the “pursuit of happiness”, at least not without the endorsement of the legislature.
Alas, in this age of hyper-activism, such a judicial philosophy is likely to be dismissed as being fuddy-duddy. The larger question of the relationship between the judiciary and public opinion has no clear-cut answers. There have been moments when judges have been accused of playing to the galleries and pandering to the anti-corruption lynch mob. Moreover, many of the Court’s interventionist guidelines came at a time when a politically unsure executive found itself vacating its governance responsibilities. There was a definite political context to India’s history of judicial activism.
It will be interesting to track the judiciary’s approach if, say, India has a prolonged period of stable, majority governments capable of passing laws through both the Lok Sabha and the Rajya Sabha. The first four years of the Modi government has been a grey area. The National Democratic Alliance government enjoys a comfortable majority in the Lok Sabha but has struggled with Bills in the Rajya Sabha.
It is on the issue of social policy that the relationship between the judiciary and public opinion is more complicated. In the recent past, the courts have made important interventions to decriminalise homosexuality, remove adultery as a criminal offence, ban unilateral triple talaq divorces among Muslims and permit women’s access to shrines such as Haji Ali in Mumbai and Sabarimala in Kerala. Apart from Sabarimala, these judgments have not been greeted with significant opposition in the court of public opinion, although there have been murmurings that changes to the Indian Penal Code should have been left to Parliament to work out.
The Sabarimala judgment belongs in a different league altogether. Apart from the 1986 Shah Bano judgment — recognising the principle of alimony to divorced Muslim women — that provoked a fierce reaction in Muslim society and compelled the Rajiv Gandhi government to pass remedial legislation, there has been no other judgment that has triggered such a backlash. The unhindered right of all women of all ages to worship at the Sabarimala temple — thereby removing a ban on all women of child-bearing age — has led to mass protests all over Kerala and unease among Hindus all over the country. The protests that included a very large number of women devotees were significant enough to force the Communist-led state
government of Kerala to call off attempts to allow some women — who turned out to be activists, rather than devotees — to enter the temple under police protection.Whether the unique traditions of the Sabarimala temple — other Ayyappa temples allow women access — should be protected or subsumed by the larger principle of gender equality is worthy of serious debate. Finance Minister Arun Jaitley has suggested that whereas institutions such as marriage, divorce, adoption and inheritance must be governed in line with Article 14, the rites of worship and certain customs deserve protection under Article 25.
He suggested that it is for the courts to evolve a harmonious relationship that gets rid of harmful and obnoxious customs without affecting the body of faith. In the Sabarimala case, two factors are consequential. First, women devotees of Lord Ayyappa seem to feel that faith demand they wait until they have crossed the age of 50 before entering the temple. Belief in Lord Ayyappa also involves a belief in his sacred celibacy. In the Sabarimala controversy, gender justice through Article 14 has been contested by women themselves.
Secondly, the Hindu way of life involves a chaotic blend of the ‘great’ and ‘little’ traditions that are not prone to codification. There are unique beliefs and customs that may strike modernists as bizarre but are nevertheless real and, more important, a part of local societies. Some of these have undergone modifications keeping in mind both convenience and evolving sensibilities but others have remained unchanged over the centuries.
By applying a uniform constitutional criterion on all religious customs, the judges may have viewed the Hindu way of life through a Semitic prism with troubling consequences. The Ayyappa cult may not be a separate religious denomination but it has to be given autonomous space. It is the fight for that space that has propelled a mass upsurge of Hindus in southern India.It is ironic that the modernists and non-believers were in the forefront of charging the Ayodhya movement of attempting to create a ‘Semitic Hinduism’ and riding roughshod over ‘little’ traditions. Today, the boot is on the other foot.
Swapan Dasgupta is a senior journalist and Member of Parliament, being a presidential nominee to the Rajya Sabha.