Apex Court Has Upheld Constitutional Morality

A score of judgments last month, many of them landmarks, have shown India’s Supreme Court emerging as the bulwark of the rule of law, upholding the Constitution. What is more, amidst turbulent political discourse, as the biggest safety valve, restoring a measure of tolerance and plurality for which the Indian civilisation is known.

Some of these verdicts have served to end colonial era laws that have shaped Indians’ self-perception and cultural ethos. Among them are de-criminalising of adultery and relationship among same-sex individuals.

Not for the first time though, the apex court ventured into issues of religion and piety touching both the majority Hindus and Muslims, the largest minority.  However, in the Ayodhya dispute and right of women of all ages to enter the Sabrimala temple in Kerala, it may not have pronounced the final verdict. There is no last word on anything in India and it may have to hear review petitions.

It has upheld the State’s right to compile data on individual citizens, but has drawn the Laksmhan Rekha to protect its misuse.

A combination of political, social, cultural, religious and civilisational issues, not necessarily in consonance with each other and often contradictory, seems to have converged to influence this flurry of judicial pro-activism. The principal reason was that Chief Justice Dipak Misra was ending his tenure. But from the look of it, this is unlikely to ebb soon.

While a lot more needs done, with these verdicts, India has decisively marched into the present century.

This happened when the apex court has itself witnessed turmoil. It was only in January this year that its legitimacy came under serious scrutiny following an unprecedented press conference held by four judges of the court led by Justice J Chelameswar, second in the pecking order after Chief Justice Misra. The four were unhappy at the way he was handing out cases to them.

Speculation was that Misra was working under subtle but heavy influence of the current ruling dispensation. An unprecedented move to impeach him was mooted to score political brownies, but wiser counsel prevailed to thwart it.

Eventually, the internal dispute was patched up. Chief Justice Misra not only nominated Justice Ranjan Gogoi, one of the four, as his successor (as per rules) but ended his tenure with judgments that undoubtedly strengthen social justice, equity and democracy. The space available here does not permit an analysis of each verdict. But there is no mistaking their import and the impact they would have on India’s polity.

Equally difficult is going into why and how each judge in each of these cases perceived the matter. But a salient point is that the complexities involved caused dissenting views on many verdicts. The majority, of course, prevailed, as it should.

Justice Dhananjay Chandrachud is a rare judge, if not the world’s first, to disagree with the views and verdicts of his late father, Justice Y V Chandrachud, who headed the top court for a record seven years between 1978 and 1985. He was the lone dissenter to the majority judgment that upheld the validity of Aadhaar, the individual identification exercise that was challenged on the ground that, besides fears of data leak, compromised the individual’s privacy. He questioned why the government, fearing blocking of the legislation’s passage in the Rjya Sabha by the opposition, pushed it as a Money Bill on which the parliament’s upper house has no say. Dissenting in another verdict that upheld the State’s role in detaining a group of Maoists, he said “voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”.

The apex court gave its first judgment on the disputed piece of land in the holy city of Ayodhya where the 16th century Babri mosque stood till it was demolished in 1992.  The court blocked any further appeal on whether a mosque was ‘integral’ to Islam and ruled that the title dispute over the land be heard, beginning end-October, and be  disposed early.

Possible implication of this could well be that a favourable verdict could facilitate early building of the Ram temple. It is one of the principal political planks of the ruling Bharatiya Janata Party seeking a fresh mandate in the parliamentary elections barely six months away.

It is not surprising that the political class as a whole has refrained from commenting on the Ayodhya judgment because it is extremely sensitive – also because they find it difficult to take a stand. The apparent reasoning is that none of the political parties will dare to oppose the temple for the community that is overwhelming in numbers and for which political/electoral support is being planned.

Taking a holistic view of what judgment means, since the verdict hasfor the first time come from the highest court in the land, it would be safe to assume that the Muslim leadership – read the political class, the clergy and the few opinion makers – may accept the verdict.

It was, again, a two-one majority verdict and Justice Mohammed Wazeer, a Muslim, dissented. Similarly, on entry of women of all ages into Sabrimala shrine is a sensitive issue since women in reproductive age group have been barred for centuries. Justice Indu Banerjee, the lone woman on the Bench, dissented saying that matter of ‘religiosity’ could not be subjected to the ‘rationality’ of law. The majority verdict, critics have said, is based on abstract notions of equality, dignity, gender justice without considering social realities, one of them being the belief, howsoever irrational, that Ayyappa, the Sabrimala deity, is a celebate.

The significant point in these cases is that judges who dissent, unlike in some democracies wedded to the rule of law, are not harmed. That is the beauty of India’s Supreme Court.

It is tempting to indulge in comparison at this juncture when the United States Supreme Court has just got its 114th Associate Justice in Brett Kavanaugh after a wrenching debate over his alleged sexual misconduct and judicial temperament that shattered the Senate and triggered an acrimonious new level of polarization now encroaching on the court that the 53-year-old judge may well swing rightward for decades to come.

No, it is certainly not all hunky-dory with judiciary as a whole in what is called a nation of litigants. There are numerous problems at all levels.  Tussle with the government of the day is a permanent feature. Millions of cases have piled up. The issue of how judges should be selected remains unsettled. Access to legal redresal for the common man and much else need reforming.

Although parliament and the executive are the ones to usher in reform, the Chief Justice of India and the Supreme Court are at the top of the whole process. They most redeem themselves in the eyes of the people.

To return to the import of last month’s string of judgments, senior lawyer and former minitower P. Chidambaram says: “Every judgment of the Constitution Benches of the Supreme Court delivered in 2018 has chipped away at tyranny, enlarged the freedom of the people and advanced the cause of Constitutional morality. Project Aadhaar as envisaged by the UPA has been retrieved. The ‘good’ in Aadhaar has been saved. Most of the ‘bad’ in Aadhaar has been identified and consigned to the flames; but there is more. Eternal vigilance is the price of liberty.”


(The writer can be reached at mahendraved07@gmail.com )


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