India's highest court has recently given a spate of verdicts that seem to fly in the face of India's avowedly right-wing government.
For those keeping track of India, recent developments involving the judiciary must be confounding. You have an avowedly religiously inclined right-wing conservative government and yet the country’s top court in a series of judgments has struck down long-standing laws that would go down well with left-of-centre, liberal minded sections.
A fourth ruling, on Friday, has allowed the entry of all women into a well-known Hindu religious shrine. Women, who had reached puberty until menopause (ages 10-50), had been barred entry into the Sabarimala temple in the South Indian state of Kerala, since before colonial times.
The Supreme court, India’s apex court, has the last word on all legal matters and is taken very seriously. In other words, there is no way the federal or any of the state governments can even think of flouting the orders of the top court except in rare cases, through Parliamentary legislation. But even that is open to judicial review and is liable to be held invalid if it goes against the Constitution of India.
Lest anyone comes to a hasty conclusion about the progressive nature of Indian society based on these judgments, pause. For, these only reflect the complexity of the country’s social makeup.
If on the one hand, you have an apex court passing such progressive judgments, on the other hand there are socially questionable practices that have a wide following in the name of religion, tradition and custom.
For example, the majority Hindu community is divided along caste. The caste hierarchy is deep-rooted and each caste exists in silos. Relationships, especially permanent ones like marriages, are frowned upon. And, where individuals marry across the caste divide they are liable to even get killed by their own families in what is called “honour” killing (which some now call “dishonour” killing) There have been several of these killings.
Similarly, marriages across religious lines—especially between Hindus and Muslims—face stiff resistance from traditional members of both communities. In recent times, especially since Narendra Modi’s pro-Hindu Bharatiya Janata Party (BJP) came to power, the friction has increased to an extent where those involved have been beaten up, or harassed and in some cases even jailed on false charges.
Eating beef, has turned into another stick that extreme sections of the Hindu right use to browbeat the Muslim community and underprivileged sections of the society, called Dalit or the scheduled castes.
With the tacit support of the BJP central government and various states where the party is in power, several Muslims have been lynched merely because they were either transporting cattle or were suspected to have eaten beef. Dalits too have not been spared.
Is the Supreme Court and society running in opposite directions?
Thankfully for India, those at the helm during the country’s independence in 1947 had the foresight to frame a constitution that is considered among the most progressive and far-sighted in the world.
Among other things, the constitution makers designed a document that enabled liberal parliamentary democracy with a slew of fundamental rights and privileges for the common person irrespective of gender, caste, community or religion.
Further, the Constitution affords equal rights to all religions and makes it totally free for anyone to follow any religion of their choice – an Indian version of secularism (different from the Western definition of separation between church and state)
In short, the top court has merely been doing its job. For, if any of these judgments are examined, the reason behind the rulings has been to ensure that the fundamental rights of the individual is protected.
In 2017, the court declared that the individual’s right to privacy was a fundamental right. From this flowed the judgement making gay relationships legal as what two consenting adults of the same sex do is a matter of their privacy.
Similarly, the law which had made adultery criminal – made the husband the protector of the wife. Or, it gave him privileges that the wife did not have. The court corrected this by equalising their relationship, again under the constitution which does not discriminate based on gender.
This was also the reasoning behind banning instant triple talaq – although not all Muslim women backed the judgement.
The latest judgment allowing women into the Sabarimala temple. Here too, the court said there was no reason to prevent women of any age from entering it, on the grounds that the practice was part of an ancient patriarchal system that does not have any constitutional justification.
The federal BJP government opposed the move to decriminalise adultery on the grounds that it would dilute the institution of marriage while its stance on gay relationships was ambiguous. In the case of the Sabarimala issue, it wanted an out-of-court decision.
The government also pushed for a ban on instant triple talaaq ostensibly to stop discrimination against Muslim women. But the pro-Hindu party’s real intentions were questioned as it gave it an opportunity to hit out at an Islamic practice.
That the apex court went through with its rulings irrespective of what the ruling BJP and its government wished for, indicates a considerable degree of independence. This independence could be due to the manner in which judges are nominated.
After a chequered track record since independence in 1947 when governments on various occasions tried to impede its free functioning, the court in 1993 declared that the judiciary would make its own selection of judges from the top court down to the various high courts of the country under a “Collegium” system.
The collegium, comprising senior judges of the apex court, nominates candidates which the government has no choice but to accept. Most political parties including the BJP and the opposition Congress in recent years have tried to change it to include government nominees, or block an appointment, in the selection process but the apex court in a ruling in 2015 rejected a parliamentary amendment to this effect.
So, what we see today is a court that swears by the Constitution—which is visionary—and a largely antediluvian society that is being forced into modernity.