On Sep 28, 2018, a Constitution Bench of the Supreme Court granted the petition, primarily of Naushad Ahmed Khan, President of Young Lawyers Association in Delhi, and ordered that the Sabarimala Temple in far Kerala change its traditional practice and permit entry of women of all ages.
The verdict is a voluminous work. It runs 411 pages. The sole woman Justice, Indu Malhotra who dissented with other judges on the bench takes but 74 pages of it. Of the rest, the Chief Justice Misra and Justice Kanwilkar together take 95 pages and Justice Nariman,76.
It is Justice D Y Chandrachud who dominates the narrative of the verdict with his order that spans 165 pages. It is notable not only for its length but also its scope. He is not merely dealing with the issue at hand, namely a practice in Sabarimala temple, but with issues that he believes agonize our society and which it is his duty to address and ameliorate.
It is a very revealing judgment for it gives us an insight into the way his mind works. And that is of great importance for all of us to know, because in the normal run of events, he could be our Chief Justice in a year and enjoy a tenure of two years.
So, we would do well to study his view and evaluate him as we would any public figure, whether an activist, an author or a politician.
His long judgment is not easy to read. It has a prologue, which he calls ‘Conversation with Constitution’ and an epilogue termed, ‘A roadmap for the future’, no less. They’re resounding phrases that might belong in a manifesto.
Between the prologue and the epilogue, the Justice lays bare his views on our society. Briefly this is his conviction: we are a society riven by biases, inequalities, oppressions and superstitions. It is the manifest duty of the Constitution to correct these errors in our ways, reform and transform us.His annoyance with what he feels is prevalent, comes through frequently.
Sample these: ‘…centuries of discrimination against Dalits, women and the marginalised’, ‘veneer of caste, patriarchy or otherwise’, ‘…faith and worship must produce a compassionate and humane society’, ‘…binaries which polarized our society’, ‘Nor can intolerance of society operate as a marauding morality to control individual self-expression in its manifest form’, ‘…governance by majority is all about the accumulation of political power’, ‘…the fundamental postulate of secularism’, ‘The postulate is not that all men are created equal but that all individuals are created equal’, ‘Scriptures and customs merge with bewildering complexity into superstition and dogma’ …and, so on and on he goes, in like vein throughout his judgment.
The Judiciary’s role it’d seem is to interpret the Constitution in ways that will transform our society. ‘…Into what?’, I quietly asked myself and subsided. I suppose I must surrender to his zeal and reconcile with our Constitution transformed into a Book, like other notable prescriptive ones. All spaces in it that were provided by its framers to accommodate the ways of an ancient civilization must be reexamined and ironed out.
For instance, if there are a million individuals with identical views on a given unoffending religious practice, such as say in the Sabarimala issue, their choice must still be scrutinized for the severest conformity with modern notions of social justice. Basically, every pre-1950 practice is fit for inspection, one PIL at a time, until we are totally transformed into a monochrome people.
The Justice is a man driven by his zeal. The two unforgettable passages below, convey his passion, if anything:
“The reading of the fundamental rights as constellations emerging from a cosmos of freedom and as having paths which intersect, and merge enhances the value of the freedom itself”…and again, to conclude his Conversation with the Constitution, this:
“Once individual dignity assumes the character of a shining star in the constellation of fundamental rights, the place of religion in public places must be conditioned by India’s unwavering commitment to a constitutional order based on human dignity.”I leave you to your reactions. I am still coping with mine.
Had the petitioners in the Sabarimala case been several thousand women, for decades in sufferance of the Temple’s practices, waiting helplessly on the highest Court as their last resort to deliver them from tyranny, and had they thronged the environs of the Court on Judgment Day and were Justice Chandrachud’s order delivered over a public address system, a roar of celebration might have deafened the nation. For it is that sort of stirring prose; well, sort of.
In the event however, the women that the verdict sought to liberate greeted it with sullen anger. Shortly in fact, the peaceable women of Kerala marched in dignified protest on their streets. Soon, people -mostly, women- were to join in protests across the country and the world.
Sabarimala devotees indeed seem to have have strange notions of equality and liberty.
The one notable female public voice welcoming the verdict was Barkha Dutt’s, which exulted that Justice Chandrachud’s verdict signified the advent of ‘Judicial Democracy’. It is she who hastened me, with not a little alarm, to study his order.
After a preliminary reading, my guess is we are at a pivotal moment in our political history.
We are now governed by a triumvirate. Legislators are elected and from them arises the Executive, which is best positioned to feel the pulse of the people. Based on its judgment the Executive then prioritises the changes to legislate, that’d cause the least friction. It must hasten with caution while navigating the shoals of opposing views in the legislature and society at large. All the above, while under the constant scrutiny of the Judiciary.
What the Chandrachud Order envisages is the supremacy of the Judiciary. Does the Judiciary have the constitutional mandate to directly dictate changes and demand of the Executive to enforce its diktats?
That is a separate debate that must not be evaded.
The recurring assertion of his verdict is that our Constitution mandates that our society be transformed. Words ‘transform’ or ‘transformation’ occur 10 times. ‘Superstition’ or ‘superstitious’ occur 28 times. Casteism, oppression, liberty, equality, rights, dignity, entitlement and kindred words are a legion in his pages. It is clear he believes it is his manifest duty to rid the society of the ills he’s convinced it is riddled with.
He begins his order with what he calls his ‘Conversation with the Constitution’. It runs 23 pages at the end of which he has already found the practice at Sabarimala ‘cannot be countenanced’. The rest of the over 100 pages is a masterly exercise of jurisprudence meant to justify his order. I am not, as I said competent to critique it yet, but have promised to educate myself to do so later.
In the meantime, please take this as my ‘Conversation with his Verdict’ to explore what promises his words hold for reforming the many ills widely perceived to be afflicting his profession.
Thus finally, I arrive at the purpose of my article.
The judiciary in India, ranging from District Courts to the Supreme one, is a parallel society, if not an intimidating forbidden universe.
If you survey it through the same lens that the Justice uses to scrutinize the society at large, the following will become apparent:
Inequality: How easily the rich and the influential get relief like bail and generous postponements of their dates with law. Even after conviction, how easily they are released without serving their terms- sometimes in just a day, or allowed to luxuriate, cuddled in a hospital bed. Is the treatment meted out by the Justice’s brethren ‘equal’? Every product that is launched, every political party that fights an election, every responsible government initiating a move commissions a survey to obtain a feedback. The Judiciary it seems to me, would do well to commission a survey to discover how the justice it delivers is perceived.
Patriarchy: Since 1950 there have been about 160 judges that served the Supreme Court. The first woman judge was not inducted till 1989. Since then there have been but 7 women judges. That might seem a quibble, so let it pass.
The Court has often shown unctuous consideration for minority sensitivity by including minority judges in cases where an outcome may seem communally biased. How often has the same consideration been applied in women centered cases? In these days of hair trigger social justice sensitivity would this not amount to patriarchy at work? I am just asking.
Ironically, in the Sabarimala case, the sole woman Justice ruled in favour of prevailing practice in the Temple. She appears to have had an unerring woman’s point of view, as the uprising of outraged women subsequently testified.
Is there a patriarchy issue at home in SC, which might benefit by some reformist zeal?
Casteism: Castes, in my view, are of three types. There are the Oppressed Castes -leather and sanitation workers are among the first few that come to mind. Next are the Sanguine Castes, which are quite at peace with their caste identities; the mercantile clans are typical of them. Then there are the Castes of Entitlements. Brahmins are usually reviled as being of this type but surely there are many other, as we shall soon see.
All castes tend to rally in support of their members; I would have called this cronyism, were it for the cruelty of it, when applied to the Oppressed Castes. Among the Privileged and Sanguine castes, nepotism is rife. They generally close ranks against even fair criticism. That is, they brook no outside evaluation or jurisdiction.
Staying with castes awhile, new castes tend to be formed and many old ones fade away. Thus, we see new castes formed among families of film directors and actors, and politicians. Indeed, even a Prime Ministers’ Caste has emerged, though it is somewhat embattled at the moment. All these feature hereditary rights, privileges and self-defined rules of behavior, such as what Brahminism is accused of.
Am I wrong then, in observing a Judiciary Caste as having emerged as well? An Entitled Caste? An unverified factoid floating around says most of the current judges come from some 300 families. Justice Chandrachud as an insider, can answer that better. Given his evident passion for reforms, I hope his attention turns to this casteism as well, and its abolition.
The Judiciary Caste has notably resisted any reform of itself, whether in the ways it inducts new members into it or its methods of investigating its own misdemeanors as and when they are reported. Its members do not always disclose their tax compliance nor explain growth in their assets. Which common citizens cannot dare evade.Enough said already, I think.
Surely Justice Chandrachud can take suo moto cognizance of the issues I have raised. Are mine outrageous suggestions? I beg to plead no.
If two faraway, unconnected, unaffected PIL-wielding activists, based on nearly identical articles that appeared in 3 publications within 2 days of each other, could escalate the Sabarimala issue to a Constitution Bench and the Bench sporting the classical blindfold to denote its neutrality, produce this Sabarimala judgment, might not this article be deemed sufficient to receive the Honorable Supreme Court’s attention to address the deficiencies within it?
I hope it does. Across the board, elimination of evils of all manner of patriarchy, casteism and inequality through the agency of the Supreme Court would indeed rewrite the way democracies tend to work.
I might then stand with Barkha Dutt in cheering the advent of a Judicial Democracy, hitherto unknown to any free society.