Home India Local News Sabarimala, the judiciary, and public opinion: One size doesn’t fit all

Sabarimala, the judiciary, and public opinion: One size doesn’t fit all

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The suggestion that the higher judiciary is unresponsive to public sentiment — an important element in democratic functioning — has been frequently heard, and not merely from the lips of those who are condescendingly described as Narendra Modi bhakts. A perusal of the parliamentary debates in 1951 on the First Amendment to the Indian Constitution that, among other things, insulated the different 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 a trifle 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 lawmaking 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 literalist and 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. In laying down procedures for appointments to constitutional and quasi-constitutional posts such as the Central Bureau of Investigation director, the Supreme Court has certainly gone along with the public exasperation over the politicization of every aspect of public life. Moreover, many of the court’s interventionist guidelines came at a time when a politically unsure executive found itself vacating its governance responsibilities. In short, 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 without too much difficulty through both the Lok Sabha and the Rajya Sabha. The first four years of the Modi government has in many ways 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 decriminalize homosexuality, remove adultery as a criminal offence, ban unilateral instant triple talaq divorces among Muslims and permit women’s access to shrines such as Haji Ali in Mumbai and Sabarimala in Kerala. Most of these judgments have not been greeted with significant opposition in the court of public opinion, although there have been some murmurings that changes to the Indian Penal Code should have been left to Parliament to work out. There was also some fleeting unease over a misconception that by removing homosexuality as a criminal offence the judges were also endorsing same-sex relationships. But that was a passing disquiet that did not distract from the widespread feeling that to cast homosexuals as criminals was a step too far. https://www.telegraphindia.com/opinion/sabarimala-the-judiciary-and-public-opinion-one-size-doesn-t-fit-all/cid/1673297?ref=opinion_opinion-page

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